Scottish hate speech laws threaten freedom of speech

New Scottish hate speech laws, which came into effect in the country on 1 April 2024, have been the subject of widespread criticism, being described by one commentator as “one of the most draconian, authoritarian measures passed by a democratic government”.

The Hate Crime and Public Order (Scotland) Act 2021 consolidates existing hate speech laws and adds provisions for age, disability, religion, sexual orientation and transgender identity.

Sex is not a new provision; however, the government has indicated that a standalone misogyny bill has been planned for a later date. The absence of sex as a protected characteristic has been criticised by some feminist groups, who have raised concerns that women will be left unprotected by the laws.

Behaviour or communication that is regarded as “threatening, abusive or insulting” and that stirs up hatred, or would be considered by a ‘reasonable person’ to be ‘likely’ to stir up hatred, is an offence.

Complaints can be made anonymously by anyone, and the maximum sentence under the Act is seven years imprisonment. In addition, police can record ‘non-crime hate incidents’ when an event is not a crime.

Prime Minister Rishi Sunak and high-profile author J.K. Rowling are among those who have criticised the law, focusing on the inclusion of transgender as a protected characteristic.

The British Prime Minister has said that “people should not be criminalised for saying ‘common sense’ things about biological sex”.

J.K. Rowling posted a thread on X saying the legislation was ‘wide open to abuse’ after listing sex offenders who had described themselves as transgender alongside well known trans women activists, describing them as ‘men, every last one of them’.

Ms Rowling has criticised the laws, saying that “freedom of speech and belief are at an end in Scotland if the accurate description of biological sex is deemed criminal”.

Scottish Police, in a statement providing examples of the kind of people who commit hate crimes, appear to be targeting white working-class men, saying people who commit such crimes have ‘deep-rooted feelings of being socially and economically disadvantaged, combined with ideas about white-male entitlement’.

Lois McLatchie, legal analyst at the United Nations for ADF International has commented:

“Silencing a view that does not hold the majority silences free and fair debate. … A society that refuses to engage with different faiths, perspectives, and ideas is not tolerant. For a land famous for cherishing “freedom” above all else the proposed Bill is a disappointment. Freedom is found in the fulfilment of the human rights to freedom of belief and of expression of everybody living in Scotland. Whoever they are, whatever they believe”.

Proposed hate speech laws for neighbouring Ireland are similarly concerning, constituting a fundamental threat to freedom of expression and speech in the country and representing a worrying global trend.

In Australia similar laws have seen people like HRLA client Lyle Shelton prosecuted for ‘inciting’ hatred, contempt or ridicule.