Free expression or stirring up hatred?

Fraser Sutherland

May 11, 2020

Earlier this month we highlighted the welcome news that the Scottish Government was going to follow in other European nations footsteps and scrap the outdated common law against blasphemy.

This move comes as part of the Scottish Government’s Hate Crime and Public Order (Scotland) Bill. Other parts of this new legislation seeks to tidy up pre-existing hate crime laws. Much of this relates to what is called ‘aggravated offences’. These are actions which are already criminal offences – assault, arson, vandalism – but which is carried out against someone or a group because of prejudice demonstrated by the perpetrator. For example, a disabled person being attacked while the attacker shouts abuse about the persons disability. These aggravations have been in use for some time and allow judges the ability to take into account the prejudiced behaviour as part of the sentencing. This could include, for example, restorative justice programs that seek to re-educate the offender.

I have highlighted previously how the current width of these aggravating factors doesn’t take into account those who are targeted because they are atheists, humanists or so called ‘apostates’. Unfortunately this new bill does nothing to close this highlighted gap despite our input to the government throughout their review and drafting process and something we will further highlight to MSPs as the bill progresses.

One new section however, does seek to extend criminal law into new areas termed as “stirring up hatred”.

‘Stirring up hatred’ Lord Bracadale – the judge who carried out a review for the Scottish Government on hate crime – says:

is conduct which encourages others to hate a particular group. …. unlike an aggravated offence, where the underlying conduct is itself criminal, a stirring up of hatred offence may criminalise conduct which would not otherwise be criminal.
Lord Bracadale

In this section we have new offences which the official review for the government says “may criminalise conduct which would not otherwise be criminal.” It could apply in a number of areas but specifically included in the bill is religion.

In addition the government are proposing the ‘intention’ of the person charged with a stirring up offence need not be proven:

The Scottish Government accepts that to confine a stirring up offence to an intention to stir up hatred would be prohibitively restrictive in practice as in real-life cases it may often be very difficult to prove beyond reasonable doubt what the accused’s intent was, even where it is very clear that their behaviour would be likely to result in hatred being stirred up.
Scottish Government Policy Memorandum on the Bill

This should cause humanists some concern. The idea that free expression on religion could be limited via criminal sanction is at risk of curtailing a persons free expression and freedom of belief. This is particularly acute where the persons intention need not be proven – someone else could just take it you intended to stir up hatred against a religious group by criticising or making light of their doctrine. In addition to this there are wider questions as to the need for new stirring up offences.

The Justice Secretary has said:

Stirring up of hatred can contribute to a social atmosphere in which discrimination is accepted as normal.
Humza Yousaf, Justice Secretary

Yet the government’s own review on hate crime admitted that egregious criminal behaviour could be covered by the existing rules on the aggravated offences highlighted earlier:

every case which could be prosecuted as a stirring up offence could also be prosecuted using a baseline offence and an aggravation.
Lord Bracadale, review of Hate Crime

This begs two questions:

Why introduce new criminal offences when what you wish to prosecute can already be prosecuted (and is)?
Where is the divide between freedom of expression and freedom of religion/belief from ‘stirring up’ hatred?

On the first question there is no evidence lead by the government that such new stirring up offences are actually required. There are no examples given of where it’s been impossible to tackle hate crimes under the existing criminal code.

The current statutory aggravation model provides certainty. Certainty to victims that criminal actions motivated by prejudice or hatred will be dealt as such. Certainty to others too that their freedom of expression is not curtailed by criminal law. I think this balance is a sound one and one backed up by the evidence. The government’s new proposals on the other hand don’t provide the smoking gun that something needs to change.

On the second question on freedom of expression and religion/belief it’s important to consider what we mean by freedom of expression.

The long-repeated decisions of the European Court of Human Rights make it clear free expression on matters, including religion, is extremely important to democracy:

Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb. Such are the demands of that pluralism, tolerance and broad mindedness without which there is no “democratic society.
European Court of Human Rights, 1976

the Court further reiterates that religious groups cannot reasonably expect to be exempt from all criticism; they must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. The same principle applies to non-religious ideologies, including atheism and agnosticism.
European Court of Human Rights, 2018

Someone isn’t a victim of a hate crime because their religious sentiments are hurt or offended. Yet the bill’s own ‘freedom of expression’ section doesn’t quite set this out. Instead the bill says that discussion or criticising religion can’t be considered – on it’s own – to be ‘threatening or abusive’.

This falls some way short of a similar freedom of expression clause in the England & Wales law, The Racial and Religious Hatred Act 2006 campaigned for by our sister organisation Humanists UK. In this act, the freedom of expression clause contains a much clearer and unambiguous defence of free expression in relation to religion:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

Before this bill proceeds in the Scottish Parliament MSPs and the Scottish Government need to reconsider what it is they are trying to achieve in the section on ‘stirring-up’. If the motivation is to tackle criminal behaviour motivated by hatred (with which we agree) then why not tackle it under the statutory aggravation? Why new ‘stirring up’ offences which the review judge admitted could criminalise behaviour not previously considered such? And why if stirring up offences are indeed proven to be needed, isn’t there a clear freedom of expression clause as exists in England and Wales?

Surely the best way to tackle hatred and prejudice is through education. Not just education in schools but with hate crime offenders through restorative justice programs. After all shouldn’t our justice system not attempt to put right wrongs and reform rather than make criminals out of people for the sake of it?

Over the coming weeks and months we will be highlighting these concerns to MSPs and making sure the voice of humanists in Scotland are heard on the important matter of freedom of expression.

A fuller briefing on the provision in the bill has been produced by Humanist Society Scotland which you can download here.

Want to help? You can submit your views to the Scottish Parliament committee who is scrutinising the bill. They are asking a number of questions and want to hear from the public. Find our how to respond at their web page.