Lack of clarity in Hate Crime Bill could threaten freedom of expression

Plans to modernise hate crime laws in Scotland present a unique opportunity to enhance protections for those most vulnerable to prejudice in our society, according to the Law Society of Scotland.

The professional body for Scottish solicitors has consistently backed proposals to modernise and consolidate laws covering hate crime in the country, saying that clear rules and procedures are beneficial, and promote a better understanding and application of Scots criminal law.

However, in its submission to the Scottish Government’s call for views on the Hate Crime and Public Order (Scotland) Bill, the Law Society has said there were major flaws which could prevent the Bill from achieving its stated goals. It has criticised ‘vagueness’ in the Bill and its policy intentions, which could result in a lack of certainty for the public in understanding what constituted criminal behaviour. This would also impact on solicitors, whether prosecuting or defending those accused of offences created in the Bill.

The Law Society has also expressed fears that the Bill presents a significant threat to freedom of expression, with the potential for what may be abusive or insulting to become criminalised. These terms are highly subjective, requiring judicial clarification on a case by case basis. It also believes that the Bill’s provisions for a new offence of ‘stirring up hatred’, created in the Bill, set too low a standard as an offence can be committed if it is “likely” to stir up hatred. That is not the threshold required for criminal law which depends on guilty intention.

Amanda Millar, President of the Law Society of Scotland, said: “Scotland is becoming increasingly diverse and it’s right that we have laws that reflect this and which provide a clear message that hatred should have no place in our society now or in the future.

“Current legislation has developed in a piecemeal fashion over many years. The move to consolidate the various hate crime laws to provide a modern code of offences that are fit for Scotland in the 21^st century is a positive one.

“However, we have significant reservations regarding a number of the Bill’s provisions and the lack of clarity, which could in effect lead to restrictions in freedom of expression, one of the foundations of a democratic society. We have real concerns that certain behaviour, views expressed, or even an actor’s performance, which might well be deemed insulting or offensive, could result in a criminal conviction under the terms of the Bill as currently drafted.

“Having full and proper debate in the Scottish Parliament will be essential in ensuring that new hate crime law can work as intended. It needs to ensure an appropriate balance is maintained to protect those in society who are most vulnerable to prejudice while preserving the right to comment or debate on matters. It must also instil confidence in our criminal justice system.”

The full response is available to read on the Law Society of Scotland website: Hate Crime and Public Order (Scotland) Bill