The thin blue line: What inadequate protection for freedom of expression means in practice

This blog summarises why the Hate Crime and Public Order (Scotland) Bill needs to provide clearer protection for freedom of expression than is currently proposed by the Scottish Government.

Some commentators have suggested that the Bill will criminalise making basic statements about the nature of sex and gender identity, in ordinary language. The risks here are more subtle, however. Such subtle risks are not always dealt with well in the process of making law: legislators can find it easier to address the black and white effects of a Bill, than the ways it is open to being misused.

The bill as amended at Stage 2 (and improved from its earlier, even looser framing) requires that behaviour must be judged “abusive or threatening” by a “reasonable” person, and “intended to stir up hatred”. None of these terms are further defined.

In the Stage 1 debate and committee hearings, MSPs have taken the view that the meaning of all these words will be obvious, and they will “set a high bar”.  This is despite the considerable evidence presented over the course of the passage of the Bill that what is hateful, abusive and reasonable is substantially contested in the context of discussing sex and gender identity. 

In practice, a person will only have to find a police officer willing to entertain the idea that a leaflet like the one theorised in this blog post is “abusive”, to trigger an investigation into whether a group or individual intended to stir up hatred.

What might an investigation entail? Organisations representing journalists giving evidence to the committee, and drawing on their experience under other legislation, talked about the serious professional and personal disruption of having laptops and phones seized, for unknown periods. It would be likely to mean police interviews. It would be a non-trivial experience, even if charges were not pursued. This broadly what happened to prominent feminist politician Lidia Falcon in Spain, before the authorities decided she had no hateful intent.

The lack of any defence in the Bill for private conversations further leaves open that the police could go beyond any statements originally reported to them, and access devices to examine what statements a person has made in private, even just to one other person.

Before contemplating the possibility of going to court, let alone the likelihood of receiving a conviction, the sole barrier to a large disruptive criminal justice system intervention in a person’s life is, therefore, the application by the police of the “reasonable person” test of being “abusive”. Guessing how that might be applied if or when someone complains will now hang over people. How it is actually applied will be the difference between ordinary life and sudden, substantial disruption to that.

Some accounts on Twitter run by individuals or groups of police officers do not instill confidence that the judgement of front line police can always be relied on not to find certain ordinary statements about the nature of sex and gender identity abusive.  The experience of some cases in England under different legislation lends weight to that concern.

There is the further question of how training here will be done: how will it be overseen, what inputs will come from where, and even if it is impeccably framed, how far will it be the only thing that influences judgements on the ground about “reasonableness”?

Representatives of the front-line police have warned MSPs, as recently as late last month, that they are not at all comfortable about being put in this position. But they are not among the groups the government has chosen to listen to in the past few weeks.

All of this is before considering how employers, publishers and others may be pushed toward institutional caution, in these circumstances, and susceptible to threats of complaints to the police.

In England and Wales there was high-profile debate on this exact point when religion, and later sexual orientation, were added to the offence of stirring up hatred. Specific points of reference were put on the face of the Public Order Act 1986 (Sections 29J and 29JA) for each, precisely so that people could point easily to what the law was not intended to criminalise, of itself.

That is the model Lord Bracadale recommended. But late in the day it has been rejected by the Scottish Government, in favour of a vague general protection for “discussion and criticism” left completely open to interpretation. Worse, the government has designed, possibly by accident,  a provision which lowers the threshold for “abusiveness” for everything other than religion, so that simply expressing dislike or “antipathy” could be enough to meet the test.

There is now no proper time for debate, and provisions which are more Bracadale-like in design have had to be put together with only one day’s sight of the government’s final plan, in the final week of the legislative process.

The government has suggested some extra detail might be added to the Bill’s “Explanatory Notes”, which would be better than nothing. But it’s not clear what is on offer there, or how that will be decided or when, nor will it have the weight of being on the face of the law.

In summary, if the Bill is passed in the form the government is seeking, while it will not make certain types of statements about sex and gender identity criminal in themselves, the freedom to do so without risking at least serious disruption to life will now rest wholly on what front-line police officers decide in practice a “reasonable person” might judge “abusive” here. Given all the evidence presented to the Parliament, that feels like a very thin blue line.