Hate Crime in Scotland – what does the new legislation mean for you?

This briefing note is not legal advice. 

What has happened?

In 2021, the Scottish Parliament passed the Hate Crime and Public Order (Scotland) Bill. We and our membership influenced and contributed to positive changes as it went through the legislative process, including meeting then-Cabinet Secretary for Justice Humza Yousaf MSP on multiple occasions. 

Sponsored

The legislation was well-intentioned. It sought to consolidate existing hate crime law into a single piece of legislation and to extend protections against ​“stirring up hatred” towards a greater number of protected characteristics that individuals might have (for example, stirring up hatred against the protected characteristic of race has existed since the 1980s). The legislation came into force on 1 April 2024. 

The protected characteristics are:

• Age
• Disability
• Race, colour, nationality (including citizenship), or ethnic or national origins
• Religion or, in the case of a social or cultural group, perceived religious affiliation
• Sexual orientation
• Transgender identity
• Variations in sex characteristics

It is a matter of significant concern and regret that sex was not included as a protected characteristic within the legislation. While the Act includes a provision that allows for it to be added at a later date, we believe it should have been included originally. (The Scottish Government is bringing forward a specific Misogyny Bill, which we have positively responded to on behalf of our membership.)

The legislation now means that in Scotland:

1. If someone commits a crime, there will be an ​“aggravation” to that offence if there was prejudice towards someone who is perceived by the offender to hold one of the protected characteristics;
2. It is now a crime to ​“stir up hatred” against groups covered by the protected characteristics. For behaviour or communication to meet the threshold of ​“stirring up hatred”, it has to be what a reasonable person would consider to be ​“threatening” or ​“abusive” (a hate crime on the basis of race includes the extra threshold of ​“insulting” under stirring up hatred).

Should someone be charged with a crime under the legislation, the following are listed as legal defences within the Act:

• To show that their conduct was reasonable, including through Article 10 of the European Convention on Human Rights which provides the right for freedom of expression – including expression of information and ideas that offend, shock or disturb.
• The right to freedom of expression with regards to discussion or criticism of matters relating to any of the protected characteristics (with the exception of race).
• The right to freedom of expression to discuss or criticise, or express antipathy, dislike, ridicule or insult towards religion, religious beliefs or practices, or the position of not holding religious beliefs.
• “Proselytising”.
• Urging someone to stop practising their religion.

Much of the criticism of the Act since it has been implemented has centred on the following:

• Sex is not included as a protected characteristic, giving women less protection under the legislation than other groups.

• It is not entirely clear what constitutes ​“threatening or abusive” under the offence of ​“stirring up hatred”, which could lead to individuals self-censoring or not engaging with difficult topics in the public square.;

• Issues relating to some of the protected characteristics are contested. For example, the publication of the Cass Review highlights the toxic debates and disparities in clinical advice around providing gender identity services for children and young adults in the UK.

• Police Scotland have received thousands of complaints under the new Act already, when resources are already hugely stretched at the organisation and representatives of police officers have voiced significant concerns.

• There are concerns that many of the complaints clearly do not meet the threshold of ​“stirring up hatred” and will therefore waste police resources to address. For example, Police Scotland has said that many of the complaints in the first week were against First Minister Humza Yousaf himself.

• The role of ​“non-crime hate incidents”, which were logged by Police Scotland before the implementation of this Act.

So, what does this mean for us as Christians and as the church?

The Act now in effect should not change how we strive to share the gospel and be Christ-like in all that we do and in how we lead. As we have said as the legislation was progressing, our desire for all people to never suffer abuse or hatred because of any aspect of their identity or character is core to our beliefs; we will always stand for love and dignity and against hatred.

So, our normal church practices of evangelism, discipleship, pastoral work and guidance, teaching from the Bible, loving our neighbours and communities, and reflecting Jesus in all that we do should continue. Even if this legislation wasn’t in place, being Christ-like means that we should always be especially loving towards the most marginalised and vulnerable in society, as Jesus was. While at the same time being clear about how God has called us to live according to His Word after saving us to be with Him forever in the ultimate act of love and grace.

Yes, improvements could certainly be made to the legislation. And we can ask our MSPs to look at this legislation again. But while it is in place, we should continue what we always have done as the church, and it shouldn’t cause us to self-censor. Our voice is just as important as anyone else’s when it comes to the difficult societal issues we all grapple with.

To get in touch, email us at: scotland@​eauk.​org.