NOW CLOSED: Hate crime consultation: respond to the Scottish Government

No one wants to live in a society which tolerates malicious speech or harassment, but nor do we want legislation that brands reasonable discussion or criticism of other views as ​“hate”. In a survey of Evangelicals in the UK, we found that 84 per cent of respondents believe that freedom of speech needs greater protection as a fundamental British value.

In hate crime legislation in England and Wales, this protection takes the form of free speech clauses, which protect free expression to discuss or criticise other religions or lifestyles. Whilst not perfect, this has been successful in safeguarding free speech and debate while allowing action against malicious speech or harassment. We, therefore, believe that similar free speech defences would be needed in any new hate crime legislation in Scotland. 

The Evangelical Alliance public policy team will respond in detail to this consultation. As you may know, we have already been engaging with the Scottish Government over its recent poster campaign on hate crime. But, if you live in Scotland, we also want you to respond to the consultation, to highlight how important it is to make provision for freedom of speech.

We would particularly like you to respond to question 26 of the consultation, which asks whether there should be specific exemptions to new hate crime offences, to exclude expression of a contrary view from being defined as hate.

Please respond before the consultation closes on Sunday, 24 February, using your own words.

Question 26 ​“Do you agree with Lord Bracadale’s recommendation that there should be a protection of freedom of expression provision for offences concerning the stirring up of hatred?” 

We recommend answering ​“Yes”. You might want to consider the following points before you answer: 

Why is protection for freedom of speech important? 

• Protecting free speech defends people’s right to say things that are controversial. As Lord Justice Sedley noted in a famous case: ​“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having” [Redmond-Bate v DPP [2000] HRLR 249 at 260]. 
  
  
• A key part of evangelical faith is the freedom to share that faith with others. The Evangelical Alliance published the Speak Up resource with the Lawyers’ Christian Fellowship, to highlight the freedoms we have in the UK to do this, and the ways in which we can do this well. But, for Evangelical Christians, freedom to speak does not just go to the heart of free expression, but freedom of religion as well, which explains the strong support for free speech mentioned in the poll above. 
  
  
• The Government has already changed its definition of extremism, to clarify that respecting a person is not the same as respecting their beliefs (). This distinction is important, as an individual should be able to disagree strongly with someone’s views without disrespecting them personally. This should be reflected in hate-crime legislation which makes a clear distinction between hate directed at a person and strong disagreement with their views. 
  
  
• Modern political debate is becoming increasingly polarised. This makes it likely that accusations of ​“hate” will be misused more regularly, which could damage the reputation of measures designed to protect people from genuine harassment. To ensure such laws are applied accurately in future, we need rigorous free-speech defences in such laws.

What might these provisions look like?

• Any offence of stirring up hatred on grounds of religion must allow people the right to discuss or criticise another religion, and persuade people to change religion. This could be defended with something similar to section 29J of the Public Order Act 1986 in England and Wales, which reads: ​“Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practicing their religion or belief system.” 
  

• Any offence of stirring up hatred on grounds of sexual orientation must allow people the right to discuss and criticise sexual behaviour. In particular, it must also safeguard the right of religious communities to preach and live out their long-standing convictions on the definition of marriage as between one man and one woman. Such an exemption could be modelled on S29JA of the Public Order Act 1986 in England and Wales: ​“The discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred. In this part, for the avoidance of doubt, any discussion or criticism of marriage which concerns the sex of the parties to marriage shall not be taken of itself to be threatening or intended to stir up hatred.”
  

• It should be noted that the offence of ​“hate” based on gender reassignment is causing great legal uncertainty in England, as seen in the cases of a woman being visited by police regarding tweets about transgender and a mother being arrested for calling a transgender woman a man. We would therefore argue that any new legislation on stirring up hatred on such grounds of should also include protection of free speech around the contentious issue of gender identity.