This new ‘hate crime’ law is even more pernicious & worrying than celebrity critics like Rowan Atkinson and John Cleese realise

Scotland’s bid to outlaw prejudice against certain ‘protected characteristics’ is not just about an assault on free speech. It does something the law should never do: treat some people more favourably than others.

The media spotlight on celebrity free speech blinds us to the threat the proposed new hate crime poses to ordinary people, and their right to equal treatment under the law.

By introducing so-called ‘protected characteristics’, the Scottish government plans to allow the courts to punish alleged ‘hate crimes’ much more severely than other offences. Their argument, that offences committed against victims who identify with these ‘characteristics’ should be punished much more severely than an offence committed against someone who does not have them, threatens to undermine the right of citizens to be treated equally before the law.

So far, there are seven ‘protected characteristics’ outlined in the Hate Crime & Public Order (Scotland) Bill. They are: age, disability, race, religion, sexual orientation, transgender identity, and variations in sex characteristic. There are plans to introduce more at a later stage.

If passed, the legislation will do away with third-party corroboration, removing the burden of proof on the state when prosecuting an alleged hate crime. Instead, the opinion of the ‘victim’ will be enough to convict someone of a ‘hate crime’. Witnesses, and indeed hard material evidence, may become a thing of the past in courts if the Scottish government has its way.

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These very serious changes to the law have largely gone unchallenged by the growing opposition to the bill. Instead, campaigns have focused upon the aspects of the bill that threaten to undermine freedom of speech and artistic expression in Scotland, such as making the performance of plays and stand-up comedy subject to prosecution as a hate crime if someone should take offence. 

John Cleese, Rowan Atkinson, and Val McDermid are amongst some of the performers, artists and celebrities who have spoken out against this.  But, by limiting their opposition to the issue of free speech, they underestimate the far-reaching consequences it will have on Scottish society more generally.

It ignores the central tenet of the bill, which is the creation of the new offence of ‘aggravation by prejudice’. This new offence will have been committed if ‘malice and ill-will’ is shown toward a person who is in some way related to one of seven ‘protected characteristics’ outlined in the bill. If it is, then a hate crime will have been committed. The bill undermines the objectivity of law, which treats all members of society equally regardless of personal characteristics or social status. Under these changes Scottish law would now discriminate between individuals and treat some more favourably than others, allowing the state to act in a prejudicial manner when prosecuting an offence.

So, for example, hypothetically, if I claim publicly, or privately, that transgender females are not biologically women – as the science suggests – and someone, indeed anyone, then takes offence at this under the provision in the bill, then I can be prosecuted for a hate crime. To further undermine the idea of equality in the law, the bill stipulates that the ‘victim’ need not be either a member of the ‘protected’ group, nor do they have to be the intended target of the so-called ‘offence’ – or even present when the so-called ‘offence’ was committed. As currently laid out in the bill, the offence of ‘aggravated prejudice’ does not require an actual victim, just that someone perceives the act as somehow being motivated by ‘malice’ or ‘ill-will’.

Hate crime robs the law of its objective quality – its ability to judge people without prejudice or discrimination. This objectivity is safeguarded by the idea that before the law, regardless of social position or personal characteristics, individuals are equal. In a liberal pluralistic society, the law strives to treat everyone the same regardless of class, gender, race, economic status, education or sexual orientation, for example. This ‘blind’ quality of the law is essential in order for British justice to prevail. This is why the statue of the figure Justice that sits atop the Old Bailey Criminal Court in London is blindfolded.

In democratic societies the law aspires to protect everyone. The Hate Crime (Scotland) Bill threatens to undermine this aspiration. By forcing the law to judge an offence on whether or not it was motivated by ‘hate’, the Scottish government is threatening to undermine not only the law, but the idea of equality itself. If the members of a society are not equal in the law, then they are not equal anywhere else.

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The Scottish government claims that the bill will make Scotland a much fairer and more equal place, but it will only create greater division in Scottish society and deepen the already authoritarian nature of the SNP’s attempt to intervene and police the everyday lives of ordinary people.

Opponents of the bill have so far failed to grasp the far-reaching consequences of the proposed changes the legislation will make to Scottish law. They also fail to grasp the relationship between the indivisible nature of equality in the law and an individual’s right to free expression. An individual’s right to free speech is dependent upon the ability of the law to treat every individual in society as an equal. Once the law is allowed to discriminate on the basis of a particular identity characteristic or difference, it can no longer uphold the standard of equality in other spheres of social life, such as free expression.

This is a fact that comedians, celebrities, and advocates of free speech in Scotland would do well to remember. If the sections of the bill on ‘protected characteristics’ and ‘aggravation by prejudice’ remain unchallenged, one can have all the amendments safeguarding free speech that one wants, but they will not matter a jot. The damage will have already been done.

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