'Huge numbers' could be criminalised under new hate crime law, says Douglas Ross

The Scottish Tory leader warned people could be criminalised ‘for no good reason’

Huge numbers of people in Scotland could be “monitored or even criminalised by the police” as a result of new hate crime legislation, Douglas Ross has warned.

The Scottish Conservative leader said the Hate Crime Act, which comes into force on April 1, could see members of the public criminalised “for no good reason”.

Explained: What is the hate crime law

First Minister Humza Yousaf. Picture: John Devlin

He also raised concerns during First Minister’s Questions in Holyrood that high-profile figures such as JK Rowling could have the police at their door “every day”.

Humza Yousaf, the First Minister, said there had been “a lot of disinformation” and some “inaccurate” reporting around the Act.

The law, passed in 2021, makes it an offence to stir up hatred against protected characteristics, including age, disability, religion, sexual orientation and transgender identity. Stirring up racial hatred was already illegal, and has been for decades.

But critics have raised concerns about the impact of the new legislation on freedom of expression.

Police Scotland’s Chief Constable Jo Farrell said a balance will be struck between freedom of expression and alleged crimes.

She told a Scottish Police Authority board meeting: “We’re a rights-based organisation and our officers balance human rights against individual laws every single day, and this new Hate Crime Act is no different. In fact it contains a specific reference to the protections people have around freedom of expression.”

She said hate crime “is deplorable and it can cause deep psychological harm”, and officers will apply the new law “proportionately and uphold people’s right of expression”.

Ms Farrell said any chilling effect will be guarded against through “tight quality assurance” and keeping a “very, very close eye on ensuring that we find the balance between alleged criminality and freedom of expression”.

Speaking in Holyrood, Mr Ross said: “Humza Yousaf introduced this unworkable and dangerous law when he was justice secretary. Now he’s bringing it into force as First Minister with little training and not enough support for the officers who will have to enforce it.”

He added: “We’ve said from the outset this law is a disaster in the making. It criminalises free speech. It risks a fundamental right. It is overreach by the SNP into people’s homes. It could result in the public being criminalised for no good reason. It is set to be a shambles from day one, in just 11 days’ time.”

Mr Ross said it is still “unclear” how complaints will be dealt with by the police.

He said: “People like JK Rowling could have the police at her door every day for making perfectly reasonable statements. That could lead to huge numbers of members of the public being monitored or even criminalised by the police when they have done nothing wrong.

"Isn’t Humza Yousaf putting frontline officers in an impossible position by forcing them to police free speech?”

Mr Yousaf denied this, and said police officers are often the victim of hatred themselves.

He added: "A stirring up offence in relation to racial hatred has existed since 1986, with virtually zero controversy whatsoever. So I have absolute faith in Police Scotland’s ability to police and enforce this Act in a way that is appropriate.”

He said police officers are “adept” at dealing with vexatious complaints, adding: “I cannot say whether there will be vexatious complaints – that will, of course, depend on people’s actions. However, I can say that the threshold of criminal liability is incredibly high.”

Mr Yousaf said the legislation was debated “thoroughly” in Holyrood and only the Tories opposed it.

He also said there was a “triple lock” in the Act to preserve freedom of expression. “Protection of freedom of expression is explicitly embedded in it,” he said.

"There is also a defence available of a person’s behaviour being ‘reasonable’, which safeguards people’s rights. Thirdly, the act is compatible with the European convention on human rights, including article 10, which includes and protects everybody’s right to freedom.”

The First Minister said the freedom to criticise, insult and offend “exists and should be treasured”, and he had “full confidence” in police to look beyond “vexatious” claims.

Elsewhere, SNP MSP Ivan McKee raised concerns that Police Scotland’s website “explicitly stereotypes young working-class men from constituencies like mine and his [Mr Yousaf’s] as being the most likely to commit a hate crime”.

The website says young men aged 18-30 “are most likely to commit hate crime, particularly those from socially excluded communities who are heavily influenced by their peers”.

It adds: “They may have deep-rooted feelings of being socially and economically disadvantaged, combined with ideas about white-male entitlement.

“Committing hate crime is strongly linked to a range of risk factors including economic deprivation, adverse childhood experiences, substance abuse and under-employment. Those who grow up in abusive environments can become addicted to conflict.”

Responding to Mr McKee, the First Minister said: “It is a legitimate point that, when any marketing or awareness campaigns are done, it is exceptionally important that there is no stigmatisation of any communities whatsoever. Let us stick to the evidence and the facts about who are the victims and, indeed, the perpetrators of hate crime, but let us do that in a way that does not stigmatise a community and certainly in a way that does not pit communities against each other.

“The entire point of the 2021 Act – and, indeed, the point of most or all of our endeavours in Parliament to tackle hate crime – is to ensure a more cohesive society, as opposed to one that pits one community against another. I agree with Ivan McKee that we should focus on tackling stigma wherever it exists in our society.”