EXPLAINED: Scotland’s new hate crime law

Scotland is set to implement a new law aimed at combating hate crime on April 1, amidst growing concerns regarding its enforcement and potential implications for free speech. First Minister Humza Yousaf has countered criticisms with accusations of misinformation surrounding the Hate Crime and Public Order (Scotland) Act.

This legislation aims to enhance protection for victims and communities by consolidating existing hate crime laws and introducing a new offense for behavior intended to incite hatred based on age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics, expanding on the racial hatred offenses established in 1986.

The act’s enactment follows a contentious journey through Holyrood, necessitating amendments to strengthen free speech safeguards after objections from various groups. At its passage, then Justice Secretary Humza Yousaf assured that it struck a balance between victim protection and freedom of expression rights.

A significant point of contention has been the law’s failure to address misogyny directly. Before the act’s approval, an independent group led by Helena Kennedy KC was tasked to explore effective legal frameworks for addressing misogynistic abuse, recommending a separate misogyny act, which is still pending.

Critics, including SNP MP Joanna Cherry, express concerns that the legislation might be exploited to suppress or criminalize gender-critical views, particularly fearing repercussions for those opposing certain trans rights perspectives.

The law also raises concerns about the potential misuse in reporting hate crimes, especially given that allegations can be made anonymously. This, coupled with the Scottish Police’s reported lack of training and resources, adds to the apprehension about the law’s practical enforcement.

Humza Yousaf maintains that the legislation sets a high bar for prosecution and includes robust protections for free speech, highlighting a “triple lock” mechanism designed to safeguard against misuse. Critics, however, remain skeptical about the implications for speech and the recording of “hate incidents” that fall below the criminal threshold, suggesting this could dampen free expression.

While the act is welcomed by many for its potential to streamline and enhance hate crime legislation, the debate around its impact on speech and its enforcement by the police continues to elicit strong opinions on both sides.

Some groups view the extension and refinement of the law as a positive step toward addressing hate crimes comprehensively. However, there are concerns that the intense focus on debates surrounding transphobia may discourage other marginalized communities from reporting their own experiences of hate crimes.

Despite assurances from supporters of the act regarding the high threshold for prosecution, the police’s policy of recording “hate incidents” based on victims’ or bystanders’ perceptions adds complexity. This policy has come under scrutiny, especially following revelations of an increase in non-crime hate incidents being logged, as seen in the case of Scottish Conservative MSP Murdo Fraser.

The issue of how such incidents are recorded and addressed is undergoing review by Police Scotland, particularly in light of a court of appeal ruling in England that raised questions about the potential chilling effect on freedom of expression.

In essence, while the Hate Crime and Public Order (Scotland) Act seeks to strengthen protections against hate crimes, its implementation has sparked debates over its potential impact on free speech, the practical challenges of enforcement, and concerns about its broader societal implications. These issues highlight the delicate balance between safeguarding marginalized communities and upholding fundamental rights like freedom of expression.

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