Coffee Space 
A while back I wrote a response to the Scottish Parliament’s call for views on their proposed Hate Crime and Public Order Bill. Unfortunately it was never published, despite taking some considerable time to write it. Fortunately with this blog, I do have the capability to publish my own materials, so here it is!
Originally I asked to remain anonymous when writing this letter - I didn’t want to end up as the centre of a massive controversy (I’ve got better things to do) encase I was the only one who replied, or got read out in Parliament as a specific example. You have to pick and choose your battles.
I believe it’s because of this I wasn’t included - although I stand by the right of the individual to remain private if they choose. Even if I wasn’t from the UK, if I raise valid points, I believe they should still be published.
The original letter can be found here, but also rewritten below. I’ve converted it from LaTeX to markdown for the generator and fixed the spelling mistakes I made (somehow the spelling correction missed them at the time!).
Worth noting is that there was a 6 page limit, although all of the responses I could find actually seems to be much less than this… Perhaps some laziness in the review process?
Dear Justice Committee Members,
Hate Crime and Public Order (Scotland) Bill Call for Views
I hope this letter finds you well during these times. I am writing to you in response to the call for views as stated on the Scottish Parliament website 1
My position is that this bill should not be enacted in its current form.
I’ve attempted to keep the letter well structured and as such it is broken into multiple sections. In the Introduction I discuss terms that I believe are important to be considered in the discussion and more generally critique the broad scope of the objective of the bill. Next, in the Review I provide an overview for points within the bill. I then briefly respond to the Question Responses section, parted by the recommended structure on the website. I then provide some final remarks in the Closing section.
Here I will attempt to clarify what is defined when discussing terms and ideas within this letter, whilst offering some comment on them.
The Scottish Government’s website defines a hate crime as 2:
Hate crime can be verbal or physical and has hugely damaging effects on the victims, their families and communities, and we all must play our part to challenge it.
Physical damage is very clearly covered by other laws, hence I will discuss only verbal hate crime in the following.
The term “hate” itself is defined in the Merriam-Webster dictionary as 3
- intense hostility and aversion usually deriving from fear, anger, or sense of injury
- extreme dislike or disgust
- a systematic and especially politically exploited expression of hatred
Specifically of concern is that hate may be the response to a ‘sense of injury’, i.e. a victim of some perceived ill doing. The goal of the Scottish Government may have a negative impact on victims who may need help. For example, it’s not uncommon for a victim to have have hate for the characteristics of their attacker, or themselves. I believe there are cases where the expression of hate may be offensive, but forgiveable in the context of the scenario.
We must consider what constitutes as “hugely damaging”. This is greatly left open for interpretation, either as a potential victim to prove has been done upon them or as a potential criminal to disprove has been done upon another and/or others.
It also must be recognized that this goal will implement a reduction in freedom of expression. Not just the right of a person with offensive views to be heard, but the rights of people to listen to those views and challenge their own. The bill somewhat addresses this, but nonetheless the impact will be to reduce freedom of expression and the consequences of this must be considered.
Also consider that the intention of a word or idea may change depending on the context by which it is said. A single word or idea can have many meanings and it’s difficult to discern which was intended, despite the offence it may or may not cause. Freedoms are typically hard fought for and easily given away.
The following references SP Bill 67, Session 5 (2020), introduced by Humza Yousaf on 23rd April 2020.
Part 1 (1.1.b): The proposal that there doesn’t have to be a specific victim is troubling. Typically victimless crimes are either historical in nature and likely outdated or have a wider societal impact. The victimless crime is this case would likely be verbal in nature and therefore easily dismissed by person or group of sound mind. It’s not clear how the punishment of a victimless crime in this case benefits wider society.
Part 1 (1.2): Characteristics that a person has and is outside of their control is clearly unfair to be used against a person (such as age and disability), although there should still be room for comedy, debate and criticism. Ideologies that are chosen (such as religion), should not be afforded the same protection. Some persons for example believe in their political values almost religiously, but to restrict political discussion would effectively end modern democracy. We all hold our ideals closely, but it is only when we are able to have them challenged are they tested and improved.
Part 1 (1.3): The exclusion of any other factor when considering the offence irradiates the possibility of comedy, debate and criticism of the given characteristics.
Part 2 (3.1 & 3.2): Specifically troubling is the wording: “is likely that hatred will be stirred up against such a group”. A person whom does not intend to commit a hate crime, does not cause anybody to become a victim of a hate crime, can still be convicted of a hate crime for how their communications could possibly be perceived, despite that not occurring, as allowed in the bill’s current form. This seems open to abuse, specifically to those of differing (and sometimes unpleasant) political opinion.
Part 2 (3.7): It should be explicitly stated that a person cannot be a victim of some communicated material unless they are in either direct receipt of it or the material was distributed in a public space. Likewise, it should not be possible to suggest that a group would likely be offended by some given material if they are unable to access it.
It should also be added that it cannot reasonably be the fault of the proposed offender if the distribution of the communicated material causes offence once distributed by another person.
For example, consider a scenario where person A privately communicates offensive material to person B. Person B is not a victim of this material, but copies the material and distributes it publicly. Person B should be said to have distributed the offensive material, despite it originating from person A, as person A did not take the action which ultimately caused a hate crime to be committed.
Part 2 (3.8): A potential punishment of prison time for a verbal hate crime seems unjust and should be revised. Despite a person having a perceived repulsive ideology, a person who poses no immediate affect to society should not be imprisoned.
Part 2 (4): Fictional material (such as a public performance) should not be subject to hate crimes. For example, it should be possible to distribute and consume fictional material educating persons on what hate is from a historical, current tense or comedic perspective.
Part 2 (6): Powers of entry by force is excessive for the purpose of preventing potentially offensive material from being distributed. This will very likely be abused to silence differing political opinions.
Part 2 (11 & 12): The protection of freedom of expression should include comedy and parody. There also appears no reason as to why the same protections cannot be extended to all characteristics. An example could be a fruitful discussion about why a given group of a characteristic exhibits some statistical anomaly, a discussion which may offend some but with good intentions.
Additional to the previous points, I would like to add these additional points:
In the following I respond to the questions raised by the call:
Do you think there is a need for this Bill and, if so, why?
I don’t believe there is an immediate need for this bill and I’m very concerned about the bill in it’s current form. I believe in general we need more discussion, not less, and some of that discussion will not be pleasant, but it will be necessary.
Are there alternatives to this legislation that would be effective, such as non-legislative measures, wider reforms to police or criminal justice procedures?
I believe a much more fundamental question needs to be asked: Do people have a right to not be not exposed to hate? There are people that may hate myself for the contents of this letter, but justified or unjustified they have the right to be so. I’m not entirely sure if society will be better off if offensive persons are unable to express themselves (verbally) and potential victims are completely oblivious to the extreme views a small vocal minority have.
Please also consider that removing thee discussions from the public space does not remove them from the individual expressing them. In fact, this can only be done so through open and honest discussions without the threat of legal action. There are many documented cases of de-radicalization through this method.
Are there other provisions you would have liked to have seen in the Bill or other improvements that should have been made to the law on hate crime?
Please see the Review section, specifically Reccomendations.
The Bill brings together the majority of existing hate crime laws into one piece of legislation. Do you believe there is merit in the consolidation of existing hate crime laws and should all such laws be covered?
Generally, there is merit in simplifying the law where possible, both in length and complexity. You cannot reasonably expect the average person to follow the law if they are unable to read it. If this bill is introduced on the grounds of simplification, duplicity should be removed from existing legal documents.
Do you think that the statutory aggravation model should be the main means for prosecuting hate crimes in Scotland?
The main issue with aggravation is providing evidence that the offender was motivated by a given characteristic. For example, other than disability or transgender identity, every living person shares those characteristics. Other than very clear cases where the offender admits their motive, then you have to assume the intentions of the offender. In my opinion, this is dangerous.
Should it be used in all circumstances or are there protected characteristics that should be approached differently and why?
Ideologies, such as religion, should be removed entirely as they are not an immutable characteristic.
For example, the merits of a statutory aggravation for sex hostility rather than a standalone offence for misogynistic harassment?
The definition of misogyny is a hatred or prejudice against females. If it is to be included, the law should not preference sexes and should be gender neutral in order to be inclusive.
Do you think that a new statutory aggravation on age hostility should be added to Scottish hate crime legislation?
No. There has so far not been any evidence for it being required, making it as arbitrary as hair or eye colour.
Would any alternative means be measured effective?
For example, would there have been merit in introducing a statutory aggravation (outwith hate crime legislation) for the exploitation of the vulnerability of the victim?
Generally, vulnerable persons should not be put in a position where hate crimes can be committed against them. If discussing the internet for example, it’s impossible to make the internet safe when interacting with people from abroad who are under different laws. It is therefore logical to protect the specific vulnerable person.
Do you think that sectarianism should have been specifically addressed in this Bill and defined in hate crime legislation?
For example, should a statutory aggravation relating to sectarianism or a standalone offence have been created and added?
Again, this creeps into ideology, something that should be freely challenged. Persons of different political beliefs for example believe they are superior than one another, it would be near impossible to enforce.
Do you have views on the merits of Part 2 of the Bill and the plans to introduce a new offence of stirring up of hatred?
Please see the Review section.
In general, this part of the bill allows for a person to be found guilty of an offence despite there not being a victim. Also, constructive criticism of a group may also have the unfortunate affect of causing hate, but constructive criticism should not be prevented of any characteristics.
Do you have any views on the Scottish Government’s plans to retain the threshold of ‘threatening, abusive or insulting’ behaviour in relation to the stirring up of racial hatred, contrary to Lord Bracadale’s views that ‘insulting’ should be removed?
Insulting should most definitely be removed. More generally, being of bad character, i.e. insulting, should not be a criminal offence.
Do you have any comments on what should be covered by the ‘protection of freedom of expression’ provision in the Bill?
Freedom of expression should not cover threats of violence or convincing others to be violent (physical and verbal). Other than this, it should be expanded maximally to give the largest range of possible expression.
Do you agree with the Scottish Government that Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 about racially aggravated harassment should not be repealed?
It should be repealed. Causing ‘alarm and distress’ has been abused by the courts to limit freedom of expression.
What is your view on the plans for the abolition of the offence of blasphemy?
This should have happened many years ago, ideology shouldn’t be afforded safe harbour from criticism.
As also echoed in my email, I am happy for this letter to be published, but I would not like my name or contact details released.
Of course, they are pushing ahead with the bill anyway, despite quite clear and transparent opposition to the proposal. It seems that the potential offence caused to the few outweighs the freedoms of the many. If the SNP do end up getting the split from the UK they want - best of luck to them!