The Hate Crime and Public Order (Scotland) Act 2021 has attracted a great deal of criticism, much of it missing the point. The Act does three things. It consolidates existing laws about hate crimes, while abolishing the ancient offence of blasphemy. Second, it extends protection from “threatening or abusive” behaviour to a number of protected characteristics, including religion, gender identity, age and disability. (Race and sexuality were already protected under previous legislation.) Third, it takes the idea of public order into the private sphere: in a world where people can send messages to thousands from the comfort of their living room sofa, the old definitions of public space don’t work any more.
The Act has some clear defects. The most obvious, following Joanne Rowling’s furious exchanges with online trolls, is its failure to protect women from abuse. Only slightly less obvious is the question of reasonableness: the police have already been inundated with thousands of complaints that presumably seem reasonable to the complainers but not to people who don’t share their world view. (There is some reason to believe, too, that many of those complaints are vexatious – aimed at making a political point, rather than offering evidence of threat.) A third is that the offence of ‘stirring up’ hatred relates specifically to groups: threatening or abusing an individual person on the basis of their character or identity is left to previous legislation.
Another problem, which is regrettably intrinsic to the subject, is that threats are often delivered obliquely. Holocaust denial has been a common route; the world ruled by shapeshifting lizards less common, but nevertheless a cause for concern. The idea that it’s somehow acceptable to go to a random kosher delicatessen and ask about conduct of the Israeli Defence Force comes close. That’s not, however, a reason not to legislate – it’s proof that protection is needed.
Some of the criticisms, however, are illegitimate. One is the idea that responding to threatening or abusive behaviour is beyond anyone’s competence. Another is the argument that this is an infringement of ‘free speech’. Freedom of speech is not a right to say whatever one pleases, and it never has been. I’ve reviewed the arguments about this in a previous blog, so I won’t repeat it all here. In UK law, common restraints on free speech have included laws about public order, libel, blasphemy, incitement and conspiracy. Whether speech is restricted or not depends on what is said, where and when. Words can kill.