Scotland's Hate Crime Act: Free speech has always been a qualified right. So why the uproar? – Joshua King

Critics who claim that Scotland’s new Hate Crime Act is ‘Orwellian’ are ignoring the reality that we do not have the right to harm one another

Tit for tat. This or that. Swipe left or swipe right. It’s a problem in our politics and in society. Social media has given us not only the platform to express our thoughts but the compulsion to do so. The politics of consensus which dominated the formative years of most millennials has long since given way to right or wrong, black or white, populism and the anti-establishment. You hold a view on one issue, so it follows you must set up camp for another. What we’ve lost is compassion, hope and nuance.

I cannot believe those who drafted the bill which became the Hate Crime and Public Order (Scotland) Act 2021 set out to sow dissent. The intention, as stated on the very first page of the Act, is to make provision about the aggravation of offences by prejudice; to make provision about an offence of racially aggravated harassment; to make provision about offences relating to stirring up hatred against a group of persons; to abolish the common law offence of blasphemy; and for connected purposes.

It was, I hope, designed to reduce harm, to protect one’s fellow person, to make, as all legislation should, society better. Of course, intention is far from implementation. Has the bill and subsequent act caused division? Yes. Does the law make our society a better place? It remains to be seen, and a vocal bloc cries that the result is quite the opposite, that the law is ambiguous and restricts our freedom of expression.

Protesters demonstrate against the Hate Crime Act outside the Scottish Parliament (Picture: Jeff J Mitchell/Getty Images)

Swell of negativity

That freedom is part of our value as individuals in society. It is one of our most enduring rights, what separates democracy from all those other forms of governance. Scotland’s hate crime law, critics say, crumples that right to free expression and, in doing so, dilutes our value as individuals. Can there be any right to express oneself if that right doesn’t extend to the right to offend or dissent?

Get our weekly opinion newsletter for expert analysis from The Scotsman’s team of columnists

Perhaps it’s unsurprising there has been such a swell of negativity surrounding the legislation’s enforcement. Freedom of speech is, in legal terms, a negative right. Nothing must be done to take action against a speaker.

But perhaps what’s lost is that no obligation comes with a negative right – there’s no obligation on people to listen, to agree, to acknowledge or to publish. Expression can cause harm – that’s always been recognised in the way we handle free speech – and free speech is not and must not be the same as speech free from consequence.

Hand-wringing critics of the hate crime law, particularly around perceived restrictions on discussing transgender rights, have co-opted ‘Orwellian’ as a criticism. That these restrictions on saying unpleasant things are quintessentially 1984. It’s powerful rhetoric, terms like ‘thoughtcrimes’ and ‘Big Brother’. It’s also false. That our defences of free speech are so often framed as protecting a right to offend or hate, rather than enshrining our right to love goes a long way to explaining why this debate has been so sickening.

We take our rights for granted every day. Around the world and throughout history, people have been banned and punished for saying that they love someone – be it someone of the same sex, or of a different class or colour or creed. We’ve forgotten that Winston Smith was persecuted not for claiming a right to offend, but for daring to love and to rebel.

Coffins carried to parliament

We have so much we can express in Scotland and in the UK that all that's left to quibble about is around the fringes. Let's not take for granted how much we can say, how much love can be expressed.

The principles of the hate crime legislation are not new. Such provisions have covered racial hate speech in the UK since the 1980s. Why then have critics of this new bill not been carrying coffins to parliament every single day for the past 40 years, as they have done to mark the death of free expression this Act allegedly represents?

Is it because while many are comfortable with their position that they don’t like what others say about trans or disabled or old or religious people, they will die for their right to say it, but actually don’t feel quite the same about racists? That in fact there is a consensus among reasonable people that racists neither need nor deserve our protection.

Qualified rights aren’t bad

I’d have far more time for a true free speech absolutist who was genuinely in favour of no restrictions on expression – no obscenity laws, no restrictions on pornography, the scrapping defamation protections, legalising racial hate speech, allowing sedition and incitement for violence, releasing classified information, violating copyright, loosening advertising standards, scrapping the right to be forgotten, doing away with perjury – than for bad actors who just want to protect their right to share their particular brand of thinking with the world. If you're fully libertarian and would get rid of all those limitations on expression we have as a society, I don't agree with you whatsoever, however I can respect your sound reasoning.

But if you want to qualify your own defence of free speech then don't pretend you're not already supportive of our qualified right to say what we want. Qualified rights aren't bad. Quite the opposite. The list of qualified rights we have (in fact the only absolute rights we have are to life and protection from torture) demonstrates that as a society we recognise there is complexity in our interactions. Our right to liberty is qualified by a responsibility not to commit crimes; our right to privacy does not prevent lawful searches. We do not have the right to harm one another.

We can be better than the reaction to the Hate Crime and Public Order (Scotland) Act 2021 gives us credit for. Express yourself, be kind, and don’t pretend that your freedom of expression can be free of consequence.

Joshua King is The Scotsman’s head of digital engagement and development