Concerns over Scottish Hate Crime Bill: Proposed new bill would seriously damage freedom of expression

Humza Yousaf lobbied by Society of Editors

By Bill Heaney

The News Media Association (NMA) has become the latest body to raise concerns over proposals by the Scottish Government to introduce new legislation designed to fight hate crimes.

The move follows concerns from the Society of Editors (SoE) who in May wrote to the Scottish Justice Secretary, Humza Yousaf outlining fears that the proposed new bill would seriously damage freedom of expression in both Scotland and the UK as a whole.

In its letter to the Justice Committee in the Scottish Parliament, the NMA said it supported the Scottish Newspaper Society’s (SNS) response to the Hate Crime and Public Order (Scotland) Bill consultation. The SNS warned that the proposed law would create a considerable threat to press freedom.

“These proposals, while on the surface designed to protect vulnerable people, have the potential to usher in draconian measures where a host of pressure groups will be able to stifle or close down debate on important issues,” commented executive director of the Society of Editors Ian Murray.

“And although these are designed for Scotland, any media organisation that publishes or broadcasts north of the border could find themselves caught up or at the very least there will be a chill placed on their work.

“Looking to the future, there is also the risk that any draconian measures adopted by the Scottish government will be taken up in other parts of the UK, particularly in England and Wales where the Law Commission is currently consulting on a possible expansion in English hate-crime law.”

Plans to introduce a new offence of stirring up of hatred, without a requirement to prove that hatred was stirred up, just the potential to do so, would create potential for vexatious complaints and commentators in news publications would be “primary targets”, the SNS said.   

Even if there was a remote possibility of a successful conviction, it would present a greatly increased opportunity to instigate “worrying, time-consuming and costly” investigations against news publishers, individual staff members and contributors.

The SNS called on the Justice Committee to introduce absolute exemptions for journalism to prevent news publishers and broadcasters from becoming subject to this “wholly unnecessary threat.”

“Publishing robust opinion and comment is an essential part of open accountability, as is public testing of actions carried out by organisations of all shapes, sizes and ownerships, but by its very nature it can be subject to legal attack and this legislation creates another, potentially more potent, weapon.

[The Democrat has been boycotted and banned by the SNP for doing just that. Editor).

“We strongly believe this bill represents such a considerable threat to freedom of the Press that if it does make it into statute it must only be with absolute exemptions to prevent expensive, damaging and dangerous investigations before they start,” the SNS said.

In May, Ian Murray said: “The Scottish government states that this approach strikes the right balance between criminalisation and freedom of speech.

“But it appears to be just the opposite and designed to silence any debate on the areas covered.

“In their present form, the proposed new laws appear to be the perfect example of reversing the long-held understanding that no one has the right not to be offended. For the media this is very alarming.”

In his response to the SoE, the Scottish Justice Secretary said “I recognise the vital importance of ensuring that the media is able to report freely and impartially on sensitive and controversial topics without fear of censure or even criminal prosecution. However, I do not consider that the offences contained in the Bill interfere with the media’s ability to do so.”

The minister added: “There are very real harms created by conduct that stirs up hatred. Stirring up hatred can incite people to commit offences against individuals in the targeted group and contribute to an atmosphere in which prejudice and discrimination are accepted as normal. It can result in entire communities feeling isolated, scared and vulnerable to attack.”

In addition, the Justice Secretary said: “The Hate Crime Bill does not introduce any new legal thresholds for racial stirring up hatred offences, but simply modernises and consolidates existing criminal offences so they are found in one place. What the Bill does do is create new offences of stirring up hatred in Scotland to cover all of the other characteristics listed in the Bill, including religion and sexual orientation. The new stirring up hatred offences in the Bill cannot be easily committed. 

“A person can only commit an offence if two separate things can be proven beyond reasonable doubt. 

“Firstly, a person has to behave in a threatening or abusive manner or communicate material that is threatening or abusive. This is an existing and well-recognised legal threshold for conduct in Scottish criminal law which the courts and practitioners are familiar with. 

“Secondly, it needs to be proven that by a persons’ conduct they intended to stir up hatred in others or it is likely that hatred will be stirred up. This means that the conduct was intended, or likely to, encourage, in other people, the intense emotion of hatred toward a group.”

The Society of Editors’ letter to the Scottish Justice Secretary can be read in full here.

The Scottish Justice Secretary’s response can be read in full here.


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