Lawyers warn of ‘chilling effect’ on debate in hate crime law proposals The Times 06.08.20

The original article is here.

The professional body representing many of the country’s most senior lawyers has opposed plans drawn up by Scottish government ministers for a new hate crime law.

The Faculty of Advocates warned that provisions in the bill would have “a chilling effect on legitimate, if controversial, debate and the performing arts”.

Under proposals contained within the Hate Crime and Public Order (Scotland) Bill, behaving in a “threatening, abusive or insulting manner” or communicating “threatening, abusive or insulting material”, that either intends to stir up hatred against a protected group or is “likely” to cause hatred, would become an offence.

At present the law only references the incitement of racial hatred. In a passage echoing earlier criticism by Police Scotland, the faculty says the definition of “religion or, in the case of a social or cultural group, perceived religious affiliation” was “vague and likely to create difficulty, not least in relation to questions of football and sectarianism”.

The lawyers also raised the prospect of “extensive disruption to life and livelihood, and to the legitimate operations of businesses and institutions” caused to companies by malicious complaints.

It adds that there is scope for unfounded complaints to cause “invasion of privacy and domestic life, the seizure of telephones and computers, and the prolongation of disruption caused to people, businesses and institutions”.

Though the professional body said it supported the general principles behind the proposed reforms, it urged Humza Yousaf, the justice secretary, to reconsider the legislation. Last week, Roddy Dunlop, QC, vice-dean of the faculty, used an example from the arts to illustrate how the bill’s notion of “stirring up hatred” could impede free speech.

“How many stand-up comedians will feel comfortable telling any jokes if this law is passed?” he asked. “People could complain that the joke discriminates against Scottish people’s national identity. We worry it will be too wide and too much of a curb on freedom of expression.”

Mr Dunlop’s comments were dismissed as “scaremongering” by some lawyers, including Aamer Anwar, a leading human rights solicitor, who said the new law was designed to criminalise not free speech but behaviour that “destroys lives”. He added: “There’s always a caveat with free speech and that requires you to act responsibly.”

Last night Liam Kerr, the Scottish Conservative shadow justice secretary, urged Mr Yousaf to withdraw a “damaging and inept” bill.

While “genuine” hate crime should be punished, he argued the legislation went too far. “The very principles of free speech itself are under threat,” Mr Kerr said.

The faculty’s criticisms follow those of the Law Society of Scotland which warned last week of “major flaws” in the bill. The society said it had “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”.

The Scottish Catholic Church has suggested that expressing its position on marriage or human sexuality may be seen as an attempt “to stir up hatred” under the new laws.

The Scottish government said it welcomed the faculty’s support for the principles of the bill and noted England, Wales and Northern Ireland “all have laws in place criminalising stirring up hatred in relation to religion and sexual orientation, while Northern Ireland’s law also covers disabilities.”

A spokesman added: “This bill does not seek to stifle criticism or rigorous debate in any way. People can express controversial, challenging or offensive views as long as this is not done in a threatening or abusive way that is intended or likely to stir up hatred. The bill includes explicit provisions on freedom of expression.

“The law will protect vulnerable groups and minorities and this bill – which follows an independent, judge-led review and is backed by a number of organisations – will increase confidence in policing to those communities affected by hate crime.”