Scots, PLEASE write to Holyrood Justice Ctee and to MSPs. Here’s how and why

The draft Hate Crime and Public Order (Scotland) Bill is open for comment for just over one more week. It is a frightening attack on freedom of speech, and introduces a new offence of abusive speech, of which one can be guilty even without criminal intent, with penalties of up to seven years imprisonment. Fortunately, we still have time to persuade MSPs, of whom some even within the Government party have doubts. Links to the bill, other comments, and relevant email addresses are given below.

A person commits an offence if the person … communicates threatening or abusive material to another person, and … as a result, it is likely that hatred will be stirred up against such a group.

In brief, the bill is so broad, and its language so vague and inclusive, that it would be impossible to express oneself on a whole range of important issues without running the risk of offending.

The bill states that

A person commits an offence if the person … communicates threatening or abusive material to another person, and … as a result, it is likely that hatred will be stirred up against such a group.[Emphasis added]

The characteristics are age, disability, religion or, in the case of a social or cultural group, perceived religious affiliation, sexual orientation, transgender identity, variations in sex characteristics.

Notice that one can offend without intending to do so, even if no hatred is actually stirred up, and even if no member of the relevant group has actually complained. Strangely enough, when it comes to race, colour, nationality (including citizenship), or ethnic or national origins, there must be actual intent to stir up hatred. Why there should be this distinction is beyond my understanding, while expressions like “abuse” and “hatred” are so vague that there are a whole range of important current controversies (e.g. trans rights issues, the Palestine-Israel question, immigration, religious family law) were what some would regard as legitimate expression of opinion would risk being seen by others as abusive and stirring up hatred.

(Full text of the relevant sections at end of post)

Here’s what I sent to the Justice Committee at justicecommittee@parliament.scot, with copies to my Constituency and all my Regional MSPs:

As your constituent, I wish to comment on the draft Hate Crime and Public Order (Scotland) Bill.

I welcome the abolition of the law against blasphemy, which I hope is in no way controversial, but an eight-word Bill would suffice for that.

I am a member of an ethnic minority group, and have been subjected to abusive speech likely to stir up hatred. Despite this, I am completely opposed to this Bill, which introduces a large number of necessarily ill-defined terms, and is likely to achieve the opposite of what is intended. I am particularly concerned at the creation of a new class of offence based on the extremely ill-defined concept of “abuse”, as well as the fact that it is possible to offend under this Bill with no intention of doing so.

If this Bill or anything at all like it becomes law, it will possible for me to offend without intending to do so by communicating material considered abusive, even if I do not consider it abusive, and even in the absence of complaints from anyone who is allegedly targeted, if it is found that it is likely (whatever that may mean) that what I communicate will stir up hatred, even if that was not my intent. I expect that many of us have offended multiple times by these criteria.

As current very public disputes show, remarks that by some are considered to be simple statements of fact, or legitimate opinions, are regarded by others as abusive and liable to stir up hatred. Thus the police would undoubtedly receive many complaints under this legislation, making impossible demands on their judgement as to which ones to pursue. Moreover, the intrinsic vagueness of any legislation of this kind is such that it will be impossible to remain safe from such complaints without intolerable restriction of expression.

I would add that the terms “insulting”, “abusive”, “likely”, and “hatred” are hopelessly subjective, while the term “only”, in Sections 11 and 12 requires a distinction between a religion or behaviour, and the individuals who practice that religion or behaviour, in a way that will undoubtedly prove extremely difficult to sustain.

The Minister has told Parliament that “Context of course will be key, including the likely audience and it will rightly be a matter for our independent courts to determine whether an offence has been committed on the basis of an independent, objective assessment of the available evidence.” This is an admission that the courts would be required to decide such matters on a case-by-case basis, depending on the circumstances, without even being able to rely on precedent, since contexts will never be identical. Thus even after the establishment of a body of case law (itself a time-consuming and expensive process), the legislation will remain hopelessly vague.

Finally, we may be confident that the worst among us will test the limits of this Bill, presenting themselves as martyrs in the cause of free speech, thus gaining notoriety both for themselves and for material that may indeed be highly offensive, and actually increasing the audience for malicious material, directly contrary to the Bill’s objectives. There is precedent for this.

For all these reasons, it is my view that this Bill, with the exception of Section 16, should be withdrawn.

The bill text is here (PDF download)

 https://beta.parliament.scot/-/media/files/legislation/bills/current-bills/hate-crime-and-public-

order-scotland-bill/introduced/bill-as-introduced-hate-crime-and-public-order-bill.pdf 

All comments should be sent to the Justice Committee at justicecommittee@parliament.scot . Your MSPs, who should be sent copies of your comments. can be identified and contacted at https://www.parliament.scot/msps/current-msps.aspx. Remember to write to yuor Regional as well as your Constituency MSPs. Such comments are taken seriously and even a few can make a large difference.

The National Secular Society analysis, is here: https://www.secularism.org.uk/free-expression/scottish-hate-crime-bill.html, with useful suggestions about points to raise at https://www.secularism.org.uk/free-expression/write-to-the-justice-committee.html

The oficial Call for Comments, with some suggested points of discussion, is here: https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/115038.aspx

The full text quoted from ( Section 2, paragraphs 3:1,3:2) runs:

A person commits an offence if the person behaves in a threatening, abusive or insulting manner, or communicates threatening, abusive or insulting material to another person, and

either, in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins, or

A person commits an offence if the person behaves in a threatening or abusive manner, or communicates threatening or abusive material to another person, and

either, in doing so, the person intends to stir up hatred against a group of persons
based on the group being defined by reference to a characteristic mentioned
in subsection (3), or as a result, it is likely that hatred will be stirred up against such a group.

Subsection (3) The characteristics are age, disability, religion [this does include lack of religion; that at least!] or, in the case of a social or cultural group, perceived religious affiliation, sexual orientation, transgender identity, variations in sex characteristics.