Scotland’s New Hate Crime Act Imperils Freedom of Expression

While there is broad consensus that hate is on the rise in the UK and that reducing this social ill is a worthwhile objective, the extent to which restrictions on freedom of expression are a legitimate or effective means to achieve this remains heavily contested. Ultimately, these debates are about the appropriate way to combat societal hatred and the extent to which restrictions on certain rights, in order to achieve this objective, are legitimate. Scotland staked out a firm position in these debates with the controversial Public Order and Hate Crime (Scotland) Act 2021 (2021 Act), most of which remains unimplemented almost a year after Royal Assent.¹ Among other things, the 2021 Act incorporates new stirring up hatred offences into Scottish law, which criminalise certain kinds of expression regardless of evidence of harm or violence being likely to result from them. This reflects a trend of incorporating broadly articulated hate speech offences into criminal law frameworks. With the exception of the United States, where content-based proscriptions on expression are presumptively unconstitutional, such offences are now commonplace in liberal democracies and raise significant free speech concerns.

Governments often frame increasingly onerous restrictions on expression as necessary in order to reduce societal hatred toward vulnerable and marginalised groups, rather than proffer evidence to support the position that restrictions on expression are necessary to – and effective in – achieving this legitimate objective. The necessity and effectiveness of the restrictions are simply assumed. These measures can also distract from other ways of addressing this problem that do not implicate fundamental rights. Given these concerns, rigorous scrutiny of the stirring up hatred offences in the 2021 Act is warranted. This article provides such scrutiny and argues that these offences will imperil freedom of expression in Scotland and that, in passing the 2021 Act, the Scottish Government disregarded relevant international human rights standards and failed to address critical questions concerning whether criminal sanctions targeting speech are a necessary and appropriate tool to serve its legitimate interest in protecting particular groups from harm.

The 2021 Act received Royal Assent on 23 April 2021. The Scottish Government characterised the underlying Bill, the Hate Crime and Public Order (Scotland) Bill (SP Bill 67), as “modernising, consolidating and extending of hate crime legislation in Scotland”.² It was introduced into the Scottish Parliament in April 2020 following an independent review of Scotland’s hate crime legislation by Lord Bracadale, which recommended, among other things, consolidation of the country’s hate crime legislation into a single Bill.³ Lord Bracadale’s review of Scotland’s hate crime legislation occurred contemporaneously with the Law Commission’s review of the hate crime framework in England and Wales. In 2020, the Law Commission issued a consultation paper that included a number of proposals for reform of hate crime laws and that found a demonstrable case for extending the stirring up offences in the Public Order Act 1986 (which currently cover race, sexual orientation, and religion) to transgender identity, disability, sex, and gender.⁴ These reviews highlight the contemporary shift in the UK’s approach to hate speech, which reflects increasing acceptance of the use of criminal law measures to capture broad swaths of expression in public discourse.

While certain provisions of the 2021 Act are currently in force, its primary parts, including the stirring up hatred offences, remain prospective. It repeals certain provisions of the Public Order Act 1986 applicable to Scotland and introduces new stirring up hatred offences based on the following characteristics: race, age, disability, religion (in the case of a social or cultural group, “perceived religious affiliation” qualifies), transgender identity, and variations in sex characteristics.⁵ Unlike other hate crime offences, in which speech is only...