Under Scotland's Hate Crime and Public Order Act, citizens may be prosecuted for speech in the privacy of their own home

Scotland's Hate Crime and Public Order Act 2021 came into effect on April 1^st 2024. Given how egregiously it violates the principles of free expression and limited government, it seems especially apt that it came into effect on April Fool's Day, like a cruel joke. While the 2021 Act keeps in place significant aspects of Scotland's hate crime laws, such as the offence of incitement to hatred based on race and ethnicity, and the category of offences "aggravated by prejudice" against disability, race, and a range of other protected characteristics, it introduces a number of important innovations that bring the act into a head-on collision with the ethos of a free and open society, at least as that ethos has been widely understood up to very recently in the West.

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Two features of the 2021 Act stand out as cutting against the ideal of individual freedom and limited government: First, it creates an offence of "stirring up hatred" against individuals or groups based on protected characteristics, namely age, disability, race, religion, sexual orientation, transgender identity, and "variations in sex characteristics,” punishable by up to 7 years in prison. Second, it invites the State to police speech within the privacy of the home, by removing a clause of earlier hate crime legislation exempting communications within a "dwelling" or private residence from the scope of incitement to hatred.  

The Vagueness of “Hate Crimes”

It is no easy task to pin down the meaning of the offence of "stirring up hatred" against individual or groups based on protected characteristics. For nowhere in the legislation, nor in the hate crime strategy of the Scottish government, is the term "hatred" actually defined. So the authors of this legislation appear to have assumed that the meaning of this term is obvious to any reasonable person. But it is not obvious how hatred differs from other negative feelings like suspicion, anger, resentment, envy, and indignation, and even less obvious on what evidentiary basis we might distinguish between these emotions as external observers of other citizens’ words or behaviour.

And even if there was a way to pin down the meaning of “hatred,” it is not at all obvious on what evidentiary basis we might go about judging whether a citizen had the intention of "stirring up hatred" toward a particular group with their words or behaviour. Unless they explicitly declare that this is their intention, how can we be certain that their remarks were designed to stir up hatred, rather than simply condemn a specific action, or get something off their chest about the behaviour or attitudes of another citizen?

All of this vagueness and uncertainty can only be resolved by either interpreting the legislation conservatively, demanding a clear proof of intent to stir up hatred, in which case almost no prosecutions can be secured, or else reading intent into someone's actions based on circumstantial evidence and hearsay, in which case prosecutions will rest on arbitrary construals of intent and the law will be rendered completely arbitrary and unpredictable. In that case, people may face a 7-year jail sentence just because a judge or jury discerned, based on a subjective hunch, that they intended to stir up hatred against this or that group of persons.

Risk of frivolous and vindictive complaints

Even if intent to stir up hatred is difficult to prove, and few cases are successfully prosecuted, this does not prevent citizens from reporting their neighbours for alleged "hate crimes" and thus requiring the police to investigate the charges. This means that citizens will have to be looking over their shoulders all the time in case someone with a grudge against them, or some political activist, decides to report them to the police for something they said on social media, or anywhere else for that matter, including their own home.

The notion of "incitement to hatred," on account of its vagueness, provides a ready pretext for citizens and political activists to bring charges against anyone whose language or communications they find objectionable. Indeed, the Scottish police is actively encouraging citizens to report "hate crimes" and providing them with a variety of channels through which to do so.

This will predictably lead to a large number of reports being filed against neighbours, colleagues or bosses based on frivolous, tendentious, or political grounds. Indeed, within a few days of the law coming into effect, Police Scotland had already received over 3,000 complaints, including, ironically, a large number of complaints about a 2020 speech by First Minister Humza Yousaf himself. The Telegraph reports that the police force will have to pay their members overtime in order to process the deluge of hate crime complaints they have received.

Will any of these reports actually lead to a conviction? We do not know. But from the point of view of efficient policing as well as citizens’ security under the law, the damage is already done. For by creating a hopelessly vague crime, whose interpretation turns on a highly subjective construal of citizens’ words and behaviour, you are inviting the law to be harnessed to the cherished causes of activists (whether gender inclusion, or the fight against racism), or simply exploited to settle old scores or make your neighbour’s life difficult.

The police will undoubedly continue to be flooded with hate crime complaints, as they have already, and this will have two consequences: first, valuable police time and resources will be squandered wading through petty disputes, many of which will be tendentious or impossible to prosecute, given the requirement to show intent to stir up hatred - police time and resources that could have been spent fighting real crimes on the streets of Scotland.

Second, law-abiding citizens will be subject to police investigations for expressing opinions not to the liking of their fellow citizens, neighbours, or colleagues, or will be obliged to spend their hard-earned cash hiring a lawyer to defend themselves against frivolous or politically motivated hate speech charges. Even if you are never successfully prosecuted, having police investigators poking around in your affairs and having a potential prosecution hanging over your head is an upsetting and highly disruptive thing to have to deal with.

Chilling Effect on Speech

Controversial speech touching any of the protected categories - age, disability, race, religion, sexual orientation, transgender identity, and "variations in sex characteristics - will be enveloped in an atmosphere of fear and uncertainty. This legislation will undoubtedly have a chilling effect on political speech. Many people will probably just keep their mouth shut rather than expose themselves to a potentially disruptive and embarrassing police investigation.

This legislation is the handiwork of legislators and policymakers who do not understand the limited functions of law in a free society, and the fact that real communities are not extensions of the State. As can be clearly seen from the tone of Scotland’s hate speech strategy document, the people behind this legislation fervently believe in the power of a nanny state to make us into better and more loving persons, and to create a more inclusive and welcoming society.

But the Hate Crime and Public Order Act will achieve the exact opposite: it will force citizens with certain moral and political opinions, including normal and widely held opinions, to bite their tongue, lest they draw down upon themselves an embarrassing police investigation. Even though Police Scotland has said they will not be pressing charges against JK Rowling for her trans-critical posts on X, that does not mean critics of trans policies will be immune from investigation in the future. Rather than creating a safer and more inclusive society, the Scottish government has sown the seeds of social division and distrust, and provided a dangerous weapon to political activists and NGOs who want to make the life of their critics as difficult as possible.

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