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Humza Yousaf: Hate Crime Bill strikes right balance between respecting freedom of expression and tackling hate speech

A general view of people walking past graffiti in Leeds.
A general view of people walking past graffiti in Leeds.

The Hate Crime and Public Order (Scotland) Bill looks to modernise, consolidate and extend hate crime legislation in Scotland.

Current legislation has evolved over time in a fragmented manner. The new Bill will bring Scotland’s hate crime legislation into one statute, making the law easier to understand and more user-friendly.

Justice Secretary Humza Yousaf.

Crucially, the Bill also offers greater protection for victims of and groups affected by hate crime.

Hate crime has real life consequences – to be attacked or targeted simply because of who you are is a frightening experience.

I have been on the sharp end of bigoted abuse and know too well the hugely damaging impact it can have, not just on the individual but on families and wider community.

Victims face both mental and physical harm. The latest reports from Police Scotland show that 6,736 hate crimes were recorded in 2017-2018.

Within this, police recorded almost 900 common assaults with a hate crime aggravation.

Abuse and prejudice have long-lasting effects on victims and many will live with their scars, emotional or physical, for the rest of their lives.

Since the introduction of the Bill there has been much debate around freedom of speech. While there is legitimate debate to be had, some criticism has misrepresented what the Bill does.

I firmly believe the Bill strikes the right balance between respecting freedom of speech and tackling hate speech.  The general approach taken is based on Lord Bracadale’s independent review recommendations where he was clear that new stirring up of hatred offences would not have the effect of stifling legitimate views or seriously hindering robust debate.

Let me be clear – the Bill will not prevent people expressing controversial, challenging or even offensive views, as long as this is not done in a threatening or abusive way that is intended to stir up hatred or likely to stir up hatred.

I have been on the sharp end of bigoted abuse and know too well the hugely damaging impact it can have, not just on the individual but on families and wider community.”

The Bill includes provisions on freedom of expression to provide further clarity that the prohibition on stirring up hatred will not unduly restrict people’s right to express their faith, or to criticise religious beliefs or practices or sexual practices.

The Bill operates within a context that the ‘stirring up of hatred’ offences cannot unduly inhibit freedom of expression protections set out in the European Convention of Human Rights.

Stirring up hatred can incite people to commit offences against individuals in the targeted group and contribute to an atmosphere in which prejudice is accepted as normal. That is not the Scotland I want.

The Bill, if passed, will offer greater protection for those who suffer from this kind of behaviour.

Alongside consolidation of the long-standing stirring up racial hatred offences, the Bill provides for new ‘stirring up’ of hatred offences that would apply to all characteristics listed in the Bill: age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics.

The existing racial hatred offences criminalise conduct which includes threatening, abusive or “insulting” behaviour and is intended or likely to stir up hatred.

This approach is not new – the existing offences of stirring up racial hatred have been in force in Scotland since 1986. Similar offences have existed since the Race Relations Act 1965.

Existing stirring up racial hatred offences were in fact introduced across the UK, including Scotland, by the then UK Government in the mid-1980s.

In the late 2000s the then UK Government extended the concept of stirring up hatred offences to certain other characteristics in England and Wales.

The new stirring-up hatred offences for the other characteristics use a threshold that the conduct must be “threatening or abusive” and intended or likely to stir up hatred.

So actions must either be threatening or abusive before the new stirring up hatred offences can be committed.

And it is not enough for conduct to be threatening or abusive, there must also be an intention that hatred will be stirred up or it must be likely that the conduct will stir up hatred. Hatred is a very strong emotion.

The legislation also includes a defence that the behaviour or communication was, in the particular circumstances, reasonable. I believe that this sets an appropriately high bar before conduct is criminalised.

The Scottish Government is committed in principle for a standalone offence on misogynistic harassment to be developed.

I am clear that more needs to be done to tackle misogynistic harassment and Scotland has an opportunity to show real leadership and make clear that this kind of behaviour will no longer be tolerated. A working group will consider options around this and membership will be decided in due course.

As we move ever closer to stage one of the Parliamentary process, the Bill has received support from a number of organisations – including the Equality Network, Victim Support Scotland, Engender, the Humanist Society of Scotland and the Scottish Council of Jewish Communities.

We are determined to do everything it takes to ensure Scotland is a place where there is zero tolerance of hate crime. This Bill will play an important part in realising this.

Humza Yousaf is the Justice Secretary of Scotland and MSP for Glasgow Pollok.

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