JACOB MCHANGAMA and NATALIE ALKIVIADOU

In this latest article for Rights!, Jacob Mchangama and Natalie Alkiviadou of Justitia provide a timely socio-legal commentary on Scotland’s controversial new Hate Crime Bill. The authors detail how vagueness of language and some alarming characteristics of this proposed bill are of serious concern to free speech and run contrary to existing standards under International Human Rights Law.

Background to the Bill

In April 2020, Scotland proposed the Hate Crime and Public Order Bill with the aim of giving ‘greater protection for victims of hate crime.’ The Scottish Government is currently receiving view on the Bill. The Bill incorporates age as a protected characteristic in the ambit of Part 1 ‘aggravation of offences by prejudice,’ extending the framework of stirring up hatred, which currently only relates to race, to other protected characteristics, including disability, religion, sexual orientation, transgender identity and variation in sex characteristics. Scotland’s Justice Secretary Humza Yousaf described the bill as an ‘important milestone’. Whilst we welcome the abolishment of blasphemy which is provided for in Part 4, we hold serious reservations in relation to the dangers associated with aspects of the Bill.  

Freedom of expression concerns

Part 1 provides for ‘aggravation of offences by prejudice’ (and thus sentence enhancement set by the Court) if before, during or after the committal of the offence, the perpetrator ‘evinces malice and ill-will towards the victim’ based on his/her actual or presumed membership of a group. It is rather surprising that a higher threshold was not attached to aggravation and that the above broad terms, including mediocre negative emotions are incorporated. We are also concerned at that fact that the aforementioned emotions do not need to constitute part of the perpetrator’s intent, he or she may have ‘felt’ them post-offence as noted in Section 1(a)(i). Under Section 1 (4), the Bill provides for a low evidential requirement to demonstrate the perpetrator’s mindset and/or emotion, since just one single source is sufficient.

Part 2 deals with offences related to stirring up hatred. The Bill endorses a much lower threshold than what is set out at an international and European level. Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR) provides that ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’ The 2012 Report of the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression underlined that ‘the threshold of the types of expression that would fall under the provisions of Article 20(2) should be high and solid.’ In antithesis with the ICCPR, the Scottish Bill prohibits speech which, in relation to race, colour, nationality or ethnic or national origins, is not only threatening and abusive but also insulting. This lowers the threshold of acceptable speech to a dangerous level. Further, the fact that the term insulting is only reserved for the aforementioned characteristics, whereas for the other characteristics the speech must be threatening or abusive (but not insulting), means that the Bill has already established a structural hierarchy of some characteristics receiving more ‘protection than others.’ Free speech concerns regarding discussions on sexual lifestyles or religious beliefs are not the reason for this distinction, since they are already covered in Sections 11 and 12 (discussed below).

It is also worrying that intent is not a requirement for offences relating to stirring up hatred. It is sufficient that a person behaves in a particular manner (e.g. abusively), if it is ‘likely that hatred will be stirred up’ against a group with the protected characteristics set out in the Bill. Again, this is contrary to the position of the United Nations. For purposes of Article 20(2), the 2012 Report of the Special Rapporteur defined advocacy as ‘explicit, intentional, public and active support and promotion of hatred towards the target group.’ The vagueness associated to the Bill’s reference to a likeliness that racial hatred could be stirred up could also pose a problem under European Convention on Human Rights, since the law might not be sufficiently clear and accessible to satisfy the requirement that restrictions on Article 10 will be ‘in accordance with law.’

We also note that within the framework of stirring up hatred, the offence of possessing inflammatory material is incorporated. Such material may be threatening, abusive or insulting with a view of communicating the material to another person (regardless of his or her intention to stir up hatred), which is particularly troublesome. What if someone is possessing material which may, in fact, be insulting, for research purposes? What if that person wishes to share that material with a colleague for the same purpose? At what point do authorities intervene and determine the intention to communicate? How will this happen in practice? The lines – both conceptually and practically are blurry. Furthermore, we are concerned with the disproportionality that marks the punishment of ‘stirring up hatred’ which can lead to seven years’ imprisonment. In Handyside v The United Kingdom, The European Court of Human Rights (ECtHR) has stressed that ‘every formality, condition, restriction or penalty imposed in this sphere [i.e. Article 10] must be proportionate to the legitimate aim pursued.’ In Incal v Turkey, the ECtHR held that States must avoid resorting to criminal proceedings in the realm of speech. It further noted that if criminal measures are to be adopted, they must have the potential to respond to the impugned speech ‘appropriately and without excess to such remarks.’ As such, the punishment must be proportionate to the legitimate aim pursued and necessary in a democratic society. It seems difficult to reconcile a seven-year imprisonment for an offence which is ‘likely’ (but not intended) to stir up the abstract and undefined by the Bill notion of hatred, with the doctrine of proportionality. The element of proportionality is also incorporated in the articulation of Article 19 of the ICCPR and relevant case-law of the Human Rights Committee. The Committee held that any restrictions to free speech must meet the strict tests of necessity and proportionality and must not be too broad.

Importantly, in relation to both above parts, we note that the dangers to free speech become even more pressing with the present Bill which, although entitled ‘Hate Crime and Public Order’ deal with the criminalisation of both speech and actual violence (to person or property).

 (ii) Impact of punishment on perpetrator and victim?

The overly-broad provisions of this Bill have the potential to ‘perpetuate and entrench the values of the dominant in-groups and further marginalize out-groups.’ This was reflected, in, for example, the application of the 1965 British Race Relations Act. The first person prosecuted for the offence of incitement to racial hatred was a Black man, whilst several other Black citizens, including leaders of the Black Liberation Movement were prosecuted for anti-white hatred. The Bill may lead to a complication of ties between different marginalized groups. Examples could include, members of religious communities who are contrary to the development of gender identity issues or vice versa. Although there are provisions on freedom of expression protection in relation to religion and sexual minorities in sections 11 and 12 respectively, we cannot be sure that this Law will not be used to silence minorities. As an example, Section 11 provides that:

Behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes— (a) discussion or criticism of— (i) religion, whether religions generally or a particular religion, 5 (ii) religious beliefs or practices, (b) proselytising, or (c) urging of persons to cease practicing their religions.

This therefore gives authorities the leeway to punish speakers if they find that the particular speech act when beyond the sole objective of discussion or criticism for example. This is rather fluid, contributing to the general uncertainty of the Bill. To exemplify this, and the greater ramifications of the Bill on minority groups, is the 2017 Glasgow Pride example where two LGBTQ activists were arrested for ‘breaching the peace with homophobic aggravation.’ Their actions were holding up a place cards with words ‘These faggots fight fascists’ which, by any reasonable standard, sought to empower rather than threaten or abuse the LGBTQ community.

In Sum

We find this Bill to be vague and broad, establishing hierarchies amongst certain groups in terms of what protection they are offered and integrating speech and violence together, without adequate thought given to the ramifications on the freedom of expression. Even if a clause on freedom of expression is incorporated, the low thresholds attached, both to the aggravation of offences and stirring up hatred, would nullify the real use of such a clause. We are concerned with the growing list of protected characteristics and the impact of a long list on the basic tenets of a free and liberal democracy.

The dangers attached to this Bill vis-à-vis its use against minorities are accentuated by its vagueness and breadth. In relation to this, the Scottish government must take into account the issue of under-reporting by marginalized groups and institutional bias, which could avert groups from approaching the criminal justice system. The ‘day after’ punishment must also be taken into account, does silencing expression and enhancing punishment due to ‘ill-will’ contribute to social cohesion and the empowerment of minorities? We believe that there is no substantial evidence that points to this, whilst the structural obstacles minorities face in reporting such offences, in addition to the real possibility of the law’s use in majoritarian terms, render the Bill, in part and in whole, a step backwards in terms of the liberalisation of democracy and the sincere and real participation in healthy, free and open dialogue for all members of society.

Jacob Mchangama is the Executive Director of Justitia, a Danish think tank focusing on human rights, and heads their project on the Future of Free Speech. He has commented extensively on free speech and human rights in the Washington Post, the Wall Street Journal, The Economist, Foreign Affairs and Foreign Policy, as well as academic and peer-reviewed journals, including American Journal of Political Science, Human Rights Quarterly, Policy Review and Amnesty International’s Strategic Studies. Jacob is the host and narrator of the podcast Clear and Present Danger: a history of free speech. Follow him @jmchangama

Dr. Natalie Alkiviadou is a Senior Research Fellow at Justitia and also works on the Future of Free Speech project. Her research focuses on free speech, ‘hate speech’ and the far-right. Her monograph ‘The Far-Right in International and European Law’ was published by Routledge in May 2019 and her second monograph ‘Legal Challenges to the Far-Right: Lessons from England and Wales’ was published by Routledge in December 2019. She has several publications in a wide range of peer-reviewed journals. Follow her @NatalieAlk