Hate Crime and Public Order (Scotland) Bill: final update

As you will have seen from previous updates, debate around the Act’s controversial attempt to balance protections against hatred whilst safeguarding freedom of expression has been, at times, fierce and hotly contested. Much discourse ensued, and this concluded this week with debate stretching through Wednesday and Thursday’s parliamentary sessions before the parliament finally voted the Bill into law. So, what is the final form of the Hate Crime and Public Order Act, and does it adequately protect freedom of expression? 

The bill had ambitious goals, seeking to simplify and clarify Scotland’s various hate crime provisions into a single piece of legislation, extend legal powers to target the act of ​‘stirring up hatred’, and provide special guarantees to people under the protected characteristics: age, race, disability, sexual identity, gender identity, and religion. 

Over the entire process, from the bill’s introduction to parliament in early 2020 to its final vote in March 2021, the Evangelical Alliance, among others, has consistently pushed for guarantees on freedom of expression. We firmly believe in the right to debate and criticise ideas, whilst also being willing to be criticised in return. In taking this position we have always recognised the intentions behind the bill in seeking to protect people from hatred.

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You can find more information on the history and progress of the bill in our February 2021 Hate Crime article.

In the final stage three votes on the bill, two important amendments were accepted in the area of freedom of expression. The first, from the Scottish Government, creates a free speech defence that allows expression of discussion or criticism of every characteristic in the bill except race. This is vital to allow for debate and expression around controversial issues, particularly in the current cultural climate. This amendment also allows for additional protection in the area of religion and belief to cover a number of additional factors including expressions of antipathy, dislike, and ridicule. This is something we have argued for consistently. People must be free to debate, accept, or reject the gospel. 

The second, an amendment from the Justice Committee convener, Adam Tomkins, requires that in determining whether behaviour or communication was reasonable, particular regard must be had to the importance of the right to freedom of expression by virtue of Article 10 of the European Convention on Human Rights, including the general principle that the right applies to the expression of information or ideas that offend, shock or disturb. In short, this ensures that discussions that may shock or offend some, but do not seek to threaten or spread hatred, are protected under this Act. 

Taken together, these amendments represent real progress and are important improvements to the freedom of expression provisions of the bill; we welcome them both.

Unfortunately, a number of other amendments that would have improved the bill still further were rejected, including different forms of a dwelling defence (comments or discussions occurring within a totally private setting being protected) and the more robust definitions around the definitions of sex and its inclusion within the bill. We also still have concerns that the bill doesn’t contain specific provision for views around marriage such as those that are present in English, Welsh, and Northern Irish law.

However, overall, when we consider the state of the bill at its introduction, with no requirements to prove intent, no reasonable person test for the threatening or abusive threshold, a possible offence of possessing inflammatory material, and inadequate or entirely missing freedom of expression provisions, we can see how much the bill has changed. Intent must now be proved, a reasonable person test has been added, the freedom of expression provisions are significantly stronger, and the possession of inflammatory material section has been removed entirely. We give thanks to God for each improvement in these areas. 

If you have been following this bill you will be aware that the Evangelical Alliance has taken an active part in engaging throughout the bill process, alongside others, achieving key progress and changes in the Act’s provisions through various forms. 

Since the Bill’s introduction, we have regularly met with representatives from the Scottish Government, have appeared at the Scottish parliament’s justice committee twice, and have met justice secretary Humza Yousaf on multiple occasions to represent our members views and suggest solutions to the problems in the bill. Alongside this, we have consistently answered the Scottish Government’s calls for evidence on the Hate Crime legislation, submitting written contributions and encouraged members to do likewise. In all of this we have sought to bring a clear and consistent evangelical voice to the discussion of this bill.

Perhaps though the strongest engagement we have seen throughout this process has come from you. Our requests for prayer, evidence, contributions in consultations, and emails to your MSPs have been consistently answered. This vital engagement has helped highlight the important nature of this bill, the impact of speaking truth to power, and has helped shape the ultimate form of the Act. 

Thank you for your constant prayers and work alongside us throughout this difficult season – your actions have helped shape this Act and ensured these vital changes have been made. We continue to trust and pray that the changes made will ensure the continued ability to share the good news of the gospel and lift up the name of Jesus in our nation.