The law criminalizes 'threatening or abusive behaviour' that seeks to incite hatred
Scotland's new Hate Crime and Public Order (Scotland) Act 2021 came into force on April 1, aiming to consolidate and expand existing hate crime legislation.
The law introduces new offences intended to combat "threatening or abusive behaviour" that seeks to incite hatred against protected characteristics, including disability, race, religion, sexual orientation, gender identity, and varying sexual characteristics. This update to the law, which has included stirring up racial hatred as an offence since 1986, has ignited debate regarding its potential impact on free speech and its enforcement challenges.
The legislation brings together previous statutes on crimes "aggravated by prejudice" and racially aggravated harassment while also abolishing the outdated common law offence of blasphemy, untouched by the prosecution for over 175 years.
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Despite First Minister Humza Yousaf's reassurances of a "very high threshold" for prosecution and a "triple lock" safeguard for freedom of expression, concerns persist. Critics point out the law's failure to address hatred based on gender, leaving women unprotected despite recommendations from the Misogyny and Criminal Justice in Scotland Working Group for additional legislation targeting misogyny.
The debate over the law's implications for discussions on transgender issues has also been prominent, with some fearing it could be misused by activists to suppress or criminalize dissenting views. SNP MP Joanna Cherry expressed concerns that the act might be exploited to silence women who disagree with certain trans rights perspectives.
The legislation passed with a vote of 82-32, with four abstentions. Yousaf, the justice secretary at the time, defended the act against accusations of spreading disinformation, emphasizing that the decision not to include "sex" as a protected characteristic was to avoid excluding attacks on trans women.
An amendment proposed by Scottish Conservative MP Adam Tomkins reinforced protections for freedom of expression, highlighting the ongoing debate over what constitutes a criminal offence under the new law. Concerns have been raised about Police Scotland's readiness to interpret and enforce the expanded legislation, particularly in addressing hate crimes perpetrated through social media.
