The Hate Crime and Public Order Act was introduced on the 1st April 2024. For some, this act is a necessary evil in the Fight Against Hate. For others, it has all the potential of a misguided and potentially dangerous, April Fools’ prank. Article by Guy Boyle.

Institute is interested in ideas and the multitude of ways that they can be communicated across our increasingly complex culture. We champion creativity and the free expression of ideas. We create communications for brands, we help creatives develop their voices and we educate young people with the skills to succeed. Should we be telling them that they no longer have the breadth of expression that we enjoyed?

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 11th March 2021 and received Royal Assent on 23rd April 2021. What does it change, what’s all the fuss about and how might it be enforced? Let’s start at the beginning…

The Legal Context: The Council of Europe and The European Convention on Human Rights

This legislation builds on two previous acts. Those acts are The European Convention on Human Rights 1953 and the Public Order Act 1986.

The ECHR emerged from The Council of Europe and was drafted in 1950 and passed in 1953. With this bill, the citizens of Europe were granted the right to individual expression.

Source and copyright Source: Het Federalistisch Congres in de Ridderzaal. Lamme, H. Den Haag: Haags Gemeentearchief, 07.05.1948. Noir et blanc. Copyright: (c) Haags Gemeentearchief — Make it stand out

Whatever it is, the way you tell your story online can make all the difference.

Make it stand out

Whatever it is, the way you tell your story online can make all the difference.

It is important for us to understand the two part nature of this act. The tension between these two parts is the foundation for debate on this subject. Let’s break it down.

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

It is worth noting that this act regards the people of Europe as citizens rather than subjects of any local monarchies. There are also similarities between this act and The American Declaration of Independence where one states Everyone and the other uses Human Events and Mankind to signal that this is a perspective that is believed to encompasses all of humanity. These are ideas that emerge out of the intellectual and moral frameworks of The Enlightenment and this is (in the words of the American Founding Fathers) the self evident lens through which we should understand and engage with humanity regardless of frontiers.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The second part highlights the duties and responsibilities that come with these freedoms in a democratic society. Article 17 describes how part 2 can be used in law to negate part 1 of Article 10.

This is where the citizens of contemporary society clash as we seek to define such formalities, conditions, restrictions or penalties as are prescribed by law. This implies that we are likely to create new laws that seek to in some way regulate how we express ourselves in regard to the protection of the reputation or rights of others.

It is clear that the ground on which we draw lines that separate these two perspectives, for many, is no longer self evident.

The Legal Context: The Public Order Act 1986

The Public Order Act 1986 Part 3 dealt with public safety in regard to race, specifically outlawing racial hatred. Let’s break this down. This is the text from this section of the act:

PART III

RACIAL HATRED Meaning of "racial hatred "

17. In this Part " racial hatred " means hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.

Acts intended or likely to stir up racial hatred

18.-(1) A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if-

(a) he intends thereby to stir up racial hatred, or

(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling.

(3) A constable may arrest without warrant anyone he reason- ably suspects is committing an offence under this section.

(4) In proceedings for an offence under this section it is a defence for the accused to prove that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the written material displayed, would be heard or seen by a person outside that or any other dwelling.

(5) A person who is not shown to have intended to stir up racial hatred is not guilty of an offence under this section if he did not intend his words or behaviour, or the written material, to be, and was not aware that it might be, threatening, abusive or insulting.

(6) This section does not apply to words or behaviour used, or written material displayed, solely for the purpose of being included in a programme broadcast or included in a cable programme service.

The act states that a crime is committed only if the perpetrator intends thereby to stir up racial hatred . It states that an offence may be committed in a public or a private place but caveats that with no offence is committed where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling.

This is where concepts start to become challenging. We don’t really think about this on a daily basis and when you put it into words it can be a little surprising. We could hold a conversation with a host of different people and disagree with the ways that they understand race. It’s incredibly circumstantial and even our use of terms in regard to race change over time. What is deemed racist may change across a cultural line, within a given community or over time. An institution committed to anti-racism may be deemed racist by someone that believes drawing attention to race in a given way, is itself racist.

This is actually not an anti racism law. No matter how ugly or uncomfortable we may find it, racism is not a legal offence. They way that we think and talk about race can be crude or nuanced and flip month by month. This law captures a belief that most people share- if someone intends to stir up racial hatred towards another race then they forfeit their right to personal expression. The words intention and hatred are key here. It should be noted that the words offence and debate are absent as they aren’t relevant. This is about someone intending to spread hatred, it has nothing to do with any potential perceived offence in the mind of any particular party. It is purely about defining intent and pointing to obvious hatred. The belief here is that people promoting hatred are not taking part within a reasonable debate. They are not upholding their duties and responsibilities as citizens of an enlightened society.

Why is this Act Controversial?

When defining terms within these legal frameworks the subject is called a protected characteristic. The choice of characteristics is important. We might not want to protect music or Marmite for example as we have some joyful tolerance for ‘hate’ within those areas.

The new Scottish act adds to race as a protected characteristic with the following: age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics. It aligns the concept of stirring up hatred in relation to these characteristics.

Although intent and hatred are included in a similar way to the 1986 bill, they are proceeded by this:

PART 2

Offences of stirring up hatred

(1) A person commits an offence if—

(a) the person—

(i) behaves in a manner that a reasonable person would consider to be threatening, abusive or insulting…

This is a fundamental change. Intent has been swapped for a perception of threat, abuse or insult. As you can see this fits under the heading of stirring up hatred. Previously we only had to point to obvious hatred and understand the obvious intent behind this. Now an insult against a listed group is now considered an offence. The bill goes on to caveat this with calls back to the human rights act but it does so only after it has stated that behaviour that could be perceived as insulting is an actual offence.

This is where the act becomes problematic. It is part of the functionings of society to push at the boundaries of ideas as part of our duties and responsibilities as citizens of an enlightened society. Now we do have to actually worry about offence and how offence can be transformed into stirring up hatred. We cannot know how other people think and the time spent developing and testing ideas would in theory have to now be spent guessing what would offend any member of a currently selected group.

A Comedy of Errors?

To test if this idea make sense we could try a thought experiment. We could select the same groups as the bill or pick another set of groups. We could examine all comedy, film, tv, internet discussion, music, poster, book or home, pub or work discussion and look for those that felt insulted by any of those ideas from culture over time. We would have to turn huge parts of Scotland into prisons to cope with the biggest crime wave the UK has ever seen. Would Scotts be clambering across the border like those that attempted to flee East Berlin during the Cold War? Would we need to start burning books? This silly example highlights why this act is controversial. You can’t usually do that with laws. They usually just make sense. When you start to think that burning books (communicates to another person material that…) so that you aren’t insulted, the penny should drop that even if you believe that you’re right, you’re actually one of the bad guys.

If we considered the safeguard that these are infringements that a reasonable person would consider to be threatening, abusive… (and removed the word insulting) then it wouldn’t go that far. Precedent would be set. If that was the case, then why do we need the bill? Is it just badly worded and the real goal is to add to the list of protected characteristics? If we add the word insulting back in, then there is the potential (however ridiculous) that incredible situation could play out.

Our cultural communications often include a variety of different, engineered sets of insults and all reasonable people would agree that, yes, those insults are actually insults. It is vital that we all understand our laws and that those laws can encapsulate a spectrum of reasonable (and challenging) human behaviour. When you believe that those that insult you, belong in prison, it really is a slippery slope.

Lorcán Price, a barrister specialising in European and human rights law, explained the problem: “Say your friend made a joke in private that you found offensive. The possibility would be there to prosecute.” This may seem an unlikely outcome, but only one source is required to verify a hate crime – the supposed victim.

The consequences of current ambiguities in the law are already making themselves felt. The International Covenant on Civil and Political Rights, ratified by the UK in 1976, was given clarification by the UN Special Rapporteur in 2001. It recommends that any law prohibiting “hate speech” must ensure that “no one is penalised for true statements” and that “no one should be subject to prior censorship.”

Is Granny a Racist?

Another controversial aspect of the act is that private conversations within the home are not exempt. Have you ever felt insulted by a family member? This could add a whole new dimension to family get togethers. Never liked your 2nd cousin? Catch them out by flipping your pronouns and their next Hogmanay might be spent behind bars. Ever been disturbed by ideas held by a different generation? Now you have the mechanism to really set Granny to rights. There have many criticisms of the act by lawyers regarding the ability to enact revenge or pursue grudges, particularly within private environments. There have been 3800 complaints during the first 24 hours suggesting that there is currently an opportunistic aspect to the reporting of hate crimes. This will likely decrease as the police explain how they will set the bar with communicated guidance,

When you can easily draw parallels to an eager young member of the Hitler Youth informing on their parents or those that were encouraged to inform on work colleagues that held left wing affiliations during McCarthyism, it might indicate that even though it might be well intentioned, this act is probably a bad idea.

“This is an astonishing attack on freedom of expression which, read as I read it, threatens the publication of nearly all books published before the twentieth century”

— Francis Hoar. Barrister. Public law and human rights

Race in, Religion out

The section of the bill that covers protection of freedom of expression allows for discussion and criticism of topics related to the protected characteristics but the word (and allowance of) insult is reserved for religion. You are also allowed to dislike and ridicule religion. In terms of grading these characteristics, religion is firmly at the bottom of the list in terms of protection. If you’re a stand up comedian in Scotland, its official, religion is back on the menu. If want to cover anything else, you may need to segment your audience (and pray they aren’t insulted).

Making Room for a New Religon?

Is it going too far to draw parallels between a medieval religion with an accepted, enforced set of beliefs and the concept of a new, civil religion with it’s own set of beliefs that are enforced within a secular framework? There does seem to be an aspect of righteous zeal, a sense that this is the way to some kind of moral redemption. When conversations are monitored and certain viewpoints are deemed ‘heretical’, out of the scope for any conversation, there do appear to be overlapping factors that could be used to develop that argument.

The Pressure on the Police

The inherent problems with enforcing this act falls on the police force and the justice system. This change places an unprecedented power, and burden, in the hands of the police and courts to determine the criteria of a hate crime. David Kennedy, the General Secretary of the Scottish police Federation has stated that the main training resource for this act is a two hour online training course that is not fit for purpose and noted that ‘‘we are asking officers to police a law that they are unprepared for’’. Brent Haywood of Lindsays Lawyers explains that '‘Law should be certain and the citizen should know what conduct is or is not criminal’. Despite this, the Scottish Police force says that will will investigate every complaint. This is within the context of a list of offences that cannot be fully investigated due to lack of resources. It will be interesting to see how messaging changes after April 1st. Will the police encourage complaints relating to insults and behaviours like micro aggressions or focus on more established ideas about serious hate crime.

Concept Creep

It used to be taken for granted that we could debate freely and we were very aware of the steps that lead to physical harm. We just knew how it worked. This was within the context of the atrocities of the 20th century. You denigrate people with words and then actions and eventually you end up justifying murder. The word harm meant physical harm. The process of dehumanising through words spread through a specific culture and eventually built a context that enabled those in power to physically victimise a given group of people.

To distort this to the point where hearing something that you find offensive is, in itself, harm is a fundamental change to this rationale. This new claim must be justified on a case by case basis. It is concept creep that flies in the face of established wisdom and nuanced, workable frameworks.

If you want to ditch history and conventional wisdom, you have a hill to climb and you should be concerned any time that you achieve a victory. Smarter people than us developed these ideas within an historical context that enabled freedom of speech and incredible human flourishing. What could you be missing? What power could you be abusing? What impressionable minds are you changing? Article 10 highlights the need for responsibility.

Crossing Lines

We all want a better society but we have to very carefully way up our cures for ills. If we aren’t careful, our solutions to problems cause new problems. When we cross common sense lines in this manner we create a host of activity and anger that has nothing to do with the experience of real victims of prejudice and hate.

Links

https://www.amnesty.org.uk/what-is-the-european-convention-on-human-rights

https://www.echr.coe.int/documents/d/echr/convention_ENG

https://www.legislation.gov.uk/ukpga/1986/64/pdfs/ukpga_19860064_en.pdf

https://www.parliament.scot/-/media/files/legislation/bills/s5-bills/hate-crime-and-public-order-scotland-bill/stage-3/bill-as-amended-at-stage-3.pdf

https://www.lindsays.co.uk/news-and-insights/insights/an-analysis-of-scotlands-proposed-new-hate-crime-law-with-reaction

Is Granny a Racist? Scotland’s Controversial Hate Crime Act Explained