MBM submission to the Justice Committee: Hate Crime and Public Order (Scotland) Bill (July 2020)

The Hate Crime and Public Order Bill is intended to provide for the modernising, consolidating and extending of hate crime legislation in Scotland. Since publication in April 2020, the draft Bill has attracted a range of critical responses, including the Law Society of Scotland and the Faculty of Advocates. 

Earlier this year we launched a small crowdfunder to allow us to work on a detailed submission to the Justice Committee of the Scottish Parliament, which is tasked with overseeing the Bill.

Our full submission to the Justice Committee is available here:
MBM Hate Crime and Public Order Bill. Submission to the Justice Committee 23 July 2020

Summary of key arguments

• The argument is not convincingly made by the Bracadale Review or the Scottish Government that expanding stirring up offences will fill a legislative gap on paper, or reduce in practice the number of hate-related attacks on individuals in particular groups. Nor do other sources of evidence support this. The main purpose of the proposed expansion of stirring up offences appears to be symbolic.
  
• The Scottish Government has not treated with sufficient seriousness the potential impacts on freedom of expression of the expansion of stirring up offences.
  
• There is likely to be a substantial “chilling effect” from the combined effect of (a) behaviour only being required to be deemed “abusive” (b) likelihood being a sufficient test (c) the much weaker framing of the freedom of expression provision (for religion) compared to equivalent existing legislation in England and Wales and (d) the extension of freedom of expression protections to only two characteristics (religion and sexual orientation).
  
• How these provisions will work in relation to transgender identity, where there are strongly divergent views about what beliefs are intrinsically hateful, is a particular concern, strengthened by the absence of a mirror provision for sex.
  
• By increasing the number of characteristics included, the Bill reinforces a hierarchy between those characteristics that are protected and those that are not. The longer the list of groups included, the stronger the signal sent about the status those who are not. We are particularly concerned about the message sent by the omission of sex from the same protection as other characteristics, as the list expands.

We are grateful to all those who made it possible to do the work required by supporting our Crowdfunder.