Scotland's Hate Crime and Public Order Bill must not stifle free speech

The film Life of Brian faced accusations of blasphemy and was banned in Glasgow when it first came out (Picture: PA Photos)

With so much focus on the vital task of tackling the current Covid-19 pandemic and all its consequences, it is easy to forget there is other important Government and Parliamentary business progressing. One such example of this is the Hate Crime and Public Order (Scotland) Bill, published by the Justice Secretary Humza Yousaf on Friday.

The Bill seeks to modernise, consolidate, and extend existing hate crime law to ensure that, in the words of the Justice Secretary, “it is fit for the 21st century”. It builds on Lord Bracadale’s recent review of existing hate crime legislation, a detailed and thorough piece of work that rewards serious study.

The whole concept of hate crimes is in itself controversial, and the policy memorandum that accompanies the draft Bill recognises this. The majority of individuals who responded to the Scottish Government’s consultation on the issue were not supportive of hate crime laws at all, arguing that they restrict freedom of expression, and create a hierarchy of victims. There was, however, support for the principle of hate crime laws and their modernisation amongst organisations who responded, partly on the grounds that these “send a clear message about unacceptable conduct”.

New Scots hate crime laws could include misogynistic harassment offence

One provision of the new Bill which I welcome is the abolition of the common law offence of blasphemy. This is a law which has fallen into disuse, having last been prosecuted in Scotland in 1843. It has always seemed to me bizarre that the power of the Christian message would require man-made laws to protect or defend it.

It was only a generation ago that the Monty Python film “The Life of Brian” faced accusations of blasphemy, leading to protests outside cinemas. Indeed, Glasgow civic leaders of the time banned it from being shown at any venue within the city.

That some Christians were offended by the satirical representation of the life of Jesus was undoubtedly true at the time; but there should be no right in law not to be offended by what another person says or does. That principle applies to religions, and it should apply equally to other “protected groups” within the definition of the hate crime legislation.

Criticism of same-sex relationships

In this context, the provisions of the new Bill likely to prove most controversial are those that lead to new offences of “stirring up hatred”. At present these apply only in relation to racial hatred, but the proposal is that they should be extended to apply to all groups defined by reference to age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics.

Lord Bracadale defines this as follows: “stirring up hatred is conduct which encourages others to hate a particular group…the intention of the perpetrator is that hatred of the group as a whole is aroused in other persons”, Crucially, it would not be necessary for the prosecution to prove that there was an ‘intent’ on the part of an accused person to stir up hatred, rather that, having regards to all the circumstances, hatred in relation to a particular characteristic is “likely to be stirred up thereby”.

This raises all sorts of issues. For example, could a Christian pastor or an Islamic scholar expressing disapproval of same-sex relationships be found guilty of stirring up hatred towards the LGBT community? The issue is not simply an abstract one. Just within the last few weeks, the American evangelist Franklin Graham, son of the famous Billy Graham, had his booking for a rally at the SECC cancelled following concerns raised by Glasgow City Council, with his opposition to same-sex marriage being one of the factors quoted to justify the decision.

Such concerns were raised by a large number of respondents to the Government’s consultation. In response, the Bill does include provisions to protect freedom of expression in certain circumstances. It specifically permits discussions or criticisms of religions, and of sexual conduct or practices, making it clear that people will still have the right to express their views both on religions’ beliefs and practices, or a change of religion, and also on particular sexual practices. While this is welcome, Parliamentarians will need to carefully consider whether these protections go far enough in order to protect free speech, and whether they have sufficient breadth in scope.

Transgender debate

One of the most bitterly contested areas of public policy at present is the whole issue of transgender rights, and the perceived conflict with the rights of women, a debate so toxic that it has, on occasion, descended into violence, and led to the ‘no-platforming’ of prominent feminists at a number of universities and in other contexts.

One target for the transgender rights activists is the writer and broadcaster Germaine Greer, who has been vocal in her view (a statement of biological fact) that: “transgender women are not women”. It is a view that has been taken up by other campaigners concerned about reforms to the Gender Recognition Act.

Would a statement that transgender women are not women amount to a stirring up of hatred against transgender individuals, in terms of the new legislation? In such a case, the prosecution would not require to prove ‘intent’ to stir up hatred, but simply that it was “likely to be stirred up thereby”. The protections put in place to allow free speech in relation to both religion and sexual practices do not apply in relation to the protected characteristic of transgender identity, and accordingly would not be available in such circumstances.

What is clear from all of this is that this is a piece of legislation that will require detailed and thorough scrutiny by Parliamentarians to fully consider what the likely consequences would be. In particular, at the forefront of our minds must be the protection of free speech.

According to the satirist Andrew Doyle’s creation Titania McGrath, the High Priestess of woke, “nobody is going to prevent anyone from saying the right things, so it stands to reason that the only people who require free speech are those who are planning on saying the ‘wrong’ things”.

It is precisely because, in a free society, we need to protect people’s right to hold unpopular opinions and express them, and to say the wrong things, that legislation on hate crime needs to be fair and balanced. The current national crisis should not prevent us from having the opportunity to scrutinise these proposals thoroughly.

Murdo Fraser is a Scottish Conservative MSP for Mid Scotland and Fife

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Scotland's Hate Crime and Public Order Bill must not stifle free speech – Murdo Fraser MSP