By Katie Lundberg

The year 2020 was undeniably eventful, marked by the COVID-19 pandemic, Joe Biden’s election victory over Donald Trump, and widespread protests against police brutality following George Floyd’s death. However, an often-overlooked event was the introduction of the Hate Crime and Public Order Bill to the Scottish Parliament, a response to the independent review of Scotland’s hate crime legislation by Lord Bracadale, which recommended consolidating hate crime laws.

Just over three years after it was passed by MSPs by 82 votes to 32, this bill has finally become law: officially taking effect on Monday 1st April 2024. Although, this act is no April Fool; this new law aims to address a “rising tide of hatred” within society, as put by former First Minister Humza Yousaf.

The law extends state intervention to combat hatred against various groups based on age, race, religion, disability, sexual orientation, or gender identity. Interestingly, yet controversially, it does not currently cover women, with a separate misogyny law currently in development. 

Fervent supporters such as Yousaf support this act as a beacon of progress, as he points out that “we must remember why this Bill is so necessary, every day in Scotland around 18 hate crimes are committed.” Meanwhile, many staunch critics, including some prominent figures decry it as a harbinger of censorship and mainly raise concerns on the law’s impact on people’s free speech. 

Scottish Conservative MSP, Pam Gosal, within four days of the law’s introduction, wrote of her and her party’s desire to overturn the new legislation, commenting that even though she had previously experienced racist abuse herself, “freedom of speech is a fundamental principle that our country is built upon. There are better solutions to tackling discrimination than putting such an important right at risk.” 

As the country navigates and comes to terms with the introduction of this widely debated legislation, we find ourselves grappling with various talking points: does this law strike the delicate balance between safeguarding vulnerable communities and preserving freedom of expression, and can this truly dismantle deep-rooted prejudices, or potentially risk inadvertently stifling discourse?

Proponents contend that this law addresses long-overdue needs in tackling hate-motivated offences. Scottish Justice Secretary Angela Constance said that whilst the act “does not prevent people expressing controversial, challenging or offensive views”, comparisons with previous years showed hate crime was not new. The increase in substantiated reports this year showed the act was necessary – noting that 7,000 online reports of hate crimes were reported within a week of it coming into effect. 

As such, In the 2022/23 period, 5,738 hate crime charges were reported, emphasizing the law’s necessity. Particularly, LGBTQ+ communities have welcomed these legal protections, with reported hate crimes against them doubling over the past decade. According to a report conducted by Stonewall Scotland, 20% of LGBT people have experienced a hate crime or incident for identifying as gay, lesbian, bisexual, transgender, or any other label in the past 12 months. 

Between April 2022 and March 2023, there were 1,884 hate crime charges concerning sexual orientation and 55 transphobic hate crimes. LGBTQ+ rights activist Peter Tatchell states that this act, despite the uproar it has received, will certainly protect countless Scottish people, even expressing that “some aspects of it – words like “hate”, “malice” and “ill will” – are not defined and could be open to harsher than justified interpretation”.  

By explicitly defining hate crimes and increasing penalties for offenders, the Act intends to send a powerful message that such behaviour will not be tolerated in society, especially in Scotland: a country famed for its vibrance and citizens’ friendliness.

Conversely, critics raise concerns about the potential impact on freedom of speech. There have been several high-profile critics of this law, including the notorious owner of X (formerly Twitter) and prominent billionaire Elon Musk and podcaster Joe Rogan.

Amongst the most outspoken of this law’s opponents is the renowned author of the Harry Potter novels, JK Rowling, who warns that it will have a concerning effect on free speech. Before the first consideration of this law, she was widely criticised for her views, including by fans and stars of her universally famous penned Wizarding World. Rowling was also a vocal critic of Scotland’s Gender Recognition Bill, which was blocked by Westminster.

Seemingly launching an attack on this new law, she wrote on X: “Freedom of speech and belief are at an end in Scotland if the accurate description of biological sex is deemed criminal”, also later writing: “I’m currently out of the country, but if what I’ve written here qualifies as an offence under the terms of the new act, I look forward to being arrested when I return to the birthplace of the Scottish Enlightenment.” 

Former Prime Minister Rishi Sunak came out supporting Rowling’s remarks, claiming that the UK had a “proud” tradition of free speech, and that people should not be criminalised “for stating simple facts on biology.” It is safe to say his comments certainly did not go down well, particularly with the LGBT charity organisation Stonewall. In response, they condemned Sunak’s divisive statement, tweeting: “This kind of misrepresentation about the Act and its purpose only serves to trivialise the very real violence committed against us in the name of hate”.  

From each of the respective points of view, whilst there is the belief of the importance of clamping down on hate crime, legislation such as this risks stifling open dialogue and expression. Thereby curtailing the fundamental democratic value of free speech.

Legal experts also warn that the law could threaten freedom of expression, citing that it may criminalize historical literature used for educational purposes. “This is an astonishing attack on freedom of expression which, as I read it, threatens the publication of nearly all books published before the twentieth century”, speaks London-based barrister Francis Hoar, who cites literary classics such as William Shakespeare’s “The Merchant of Venice” and Harper Lee’s “To Kill a Mockingbird”, typically used for educational and historical purposes, as examples which may fall under the Bill’s provisions. 

Additionally, there are fears of selective enforcement, potentially muting dissenting voices. While supporters argue the law is essential for protecting vulnerable groups, the tension between safeguarding free expression and preventing hate speech remains a contentious issue. 

The law’s impact on policing is also significant. Police Scotland, the UK’s second-largest force, aims to catalogue hate crimes effectively, yet faces challenges with resource constraints and declining officer numbers. As of December 2023, the police force had the lowest staffing levels since 2008. Many officers have not yet received adequate training on the new legislation, leading to concerns about public trust and the potential for mishandling complaints.

The introduction of the Hate Crime and Public Order Act in Scotland does mark a major milestone in the ongoing battle against discrimination and prejudice within society. By consolidating hate crime laws and extending protections to various marginalized groups, the Act signals a commitment to inclusivity and progress. However, amidst intense support for its objectives, there looms a shadow of concern regarding its potential impact on freedom of speech. 

The road ahead demands careful consideration and ongoing dialogue to ensure that the pursuit of justice does not inadvertently compromise essential freedoms or erode public trust in the police. People’s health and safety are of the utmost importance today, especially when battling hate crimes. 

Ultimately, it is striking a balance between protecting vulnerable groups and safeguarding civil freedoms that will prove to be crucial in the effective implementation and enforcement of this law.