View of the debating chamber at Holyrood, with concentric rings of lecterns around a speaker's podium

Hate crime and freedom of speech: Why are the Scottish government and police ignoring our advice on the Rabat Plan?

Fraser Sutherland, CEO

April 3, 2024

Our CEO discusses the febrile debate surrounding the implementation of the Hate Crime Act, and proposes a way forward that will uphold both human rights and freedom of speech: the high-threshold Rabat Plan for determining hate crimes.

This week saw the introduction of the Hate Crime and Public Order (Scotland) Act. There’s been a lot of hot air on what this act will mean, and it’s fair to say that, while some issues raised are important, there are also clearly attempts by bad-faith actors to pollute the discourse. But as humanists, we do know how important freedom of expression is. For too many of our humanist friends around the world simply being a humanist and speaking your mind is criminal and potentially comes with lethal consequences.

Still, we feel there is a way to implement the act that will ensure both protection from hatred and rights to free expression. It involves using the Rabat Plan of Action, a document published by the UN High Commissioner for Human Rights. We’ve repeatedly advised the use of the tests contained in the Rabat Plan to ensure hate crime laws are not over-policed. Most recently we wrote to the Chief Constable of Police Scotland advising use of the hate crime thresholds contained in the plan. But so far, our advice has been ignored.

For too many of our humanist friends around the world, simply being a humanist potentially comes with lethal consequences.

Our work ensuring safeguards for freedom of speech in the Hate Crime Act

Humanist Society Scotland has long pushed for strong human rights protections as part of the Hate Crime Act. This dates back to Lord Bracadale’s review of hate crime laws in 2017-18, which led to the current legislation. In our response to that review, we showed how recognition of aggravating factors for hate crimes was a sufficient way to ensure that minority groups were protected while also protecting legitimate debate on issues such as religion. The government decided to proceed, however, with new “stirring up” offences. This was despite Lord Bracadale’s findings that “every case which could be prosecuted as a stirring up offence could also be prosecuted using a baseline offence and an aggravation.”

Fraser Sutherland, CEO of Humanist Society Scotland, addresses a crowd in a blue suit infront of an HSS banner.

“Thanks to our input, the law as finally passed by the Scottish parliament includes extensive and high-reaching thresholds for ‘hate crime’.”

Fraser Sutherland, CEO, Humanist Society Scotland

Undeterred, Humanist Society Scotland was clear that any new law would need inbuilt protections to ensure freedom of expression. As a result of humanist campaigning, significant changes were made to the bill. For example, the original plans did not require “intent” to be proved with regard to stirring up offences. It also included specific provisions regarding “offences” during theatrical performances. We co-ordinated a letter signed by over 20 artists, journalists, human rights organisations, and campaigners warning that the bill risked stifling freedom of expression. As a result, a new, more stringent “intent threshold” was introduced and provisions around “offences” during theatrical performance were removed.

We also won additional concessions ensuring that people who express “antipathy, dislike, ridicule and insult” towards religious beliefs are not restricted. Thanks to our input, the law as finally passed by the Scottish parliament includes extensive and high-reaching thresholds for “hate crime”. This should prevent over-use of stirring up offences.

The issue of how to protect groups from hateful incitement while protecting freedom of expression is not unique to Scotland….The Rabat Plan sets out a clear, high-threshold, six-part test to ensure freedom of expression is protected

Fraser Sutherland, CEO, Humanist Society Scotland

What is the Rabat Plan?

We have long been acutely aware of how the new act might be policed. Back in 2017, Humanist Society Scotland questioned whether sufficient lessons had been learned from the failure of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act. This illiberal legislation criminalised certain actions only if they happened at or en route to a football match, or even in the presence of a television showing a football match.

Thankfully, the issue of how to protect groups from hateful incitement while protecting freedom of expression is not unique to Scotland. The United Nations Office for Human Rights has long been concerned with this problem. In fact, it called an international summit on how to get the balance correct. Following years of expert testimony and workshops across the globe, the United Nations High Commissioner for Human Rights published the Rabat Plan of Action. This deals with many of the issues that have been raised in recent weeks in media commentary on the Hate Crime Act. It sets out a clear, high-threshold, six-part test to ensure freedom of expression is protected.

“The European Court of Human Rights referred to the Rabat thresholds in the Pussy Riot case of 2018.”

Fraser Sutherland, CEO, Humanist Society Scotland

A group of women in multi-coloured balaclavas sit in a line on the floor of a music practice room with amps in the background, looking at the camera

The Rabat Plan has been endorsed by the Organisation for Security and Co-operation in Europe, of which Scotland is a member through the UK. This organisation recommends that “states…train law enforcement officials and the judiciary to understand and apply the six-part test set out in the Rabat Plan of Action.” In addition, the European Court of Human Rights, the ultimate ruling court on any appeal against a conviction under the new legislation on ECHR grounds, referred to the Rabat thresholds in the Pussy Riot case of 2018.

A missed opportunity?

Humanist Society Scotland has repeatedly highlighted the value and relevance of the Rabat Plan to the Scottish government and police. It is not clear if its robust, six-part test has been considered as a way of policing or enforcing the new law. Indeed, recent correspondence we have received from civil servants and government ministers suggests the Rabat Plan has not even been properly considered. Last week, we wrote to the Chief Constable of Police Scotland to urge use of the OSCE guidance and the Rabat thresholds for both training and operational guidance.

Recent correspondence we have received from civil servants and government ministers suggests the Rabat Plan has not even been properly considered.

Fraser Sutherland, CEO, Humanist Society Scotland

In our view, this is a missed opportunity for the Scottish government to use clear, UN-backed guidance which has been shown to work elsewhere. The use of the Rabat Plan in Scotland would prevent the new act having a chilling effect on free expression. It would also stop unnecessary police investigations. And it would give the public a clear understanding of how the new act would be implemented and what behaviours would fall within and outside its remit.

We will keep making the case for a rational, humane balance between protecting vulnerable groups and freedom of speech as the Hate Crime Act is rolled out.

Title image: C. Anita Gould/Creative Commons.

Pussy Riot image: C. Wikimedia Commons

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