Concerns raised by MSP over 'vague language' used in new Scottish hate crimes bill

The Scottish Government's new hate crimes Bill evokes memories of controversial legislation that set out to tackle sectarianism, Scottish Labour's justice spokesman has claimed.

James Kelly, who spearheaded the repeal of the Offensive Behaviour at Football Act in 2018, said he has "significant concerns'' about some of the measures in the proposed new legislation.

He said he fears ministers have "not learned any lessons'' from the six years the anti-sectarian legislation was on the statute books.

The Law Society of Scotland also said it has "significant reservations regarding a number of the Bill's provisions and the lack of clarity''.

It fears the Bill, as it stands, could present a significant threat to freedom of expression, with the potential for what may be abusive or insulting to become criminalised.

Mr Kelly outlined his concerns in a submission to Holyrood's Justice Committee, which is scrutinising the new Bill.

The Hate Crime and Public Order (Scotland) Bill will, if passed, create an offence of "stirring up hatred'' against a protected group, expanding on existing laws protecting racial groups.

Mr Kelly said that under the proposals, "a crime will be committed if an individual behaves in a 'threatening, abusive or insulting manner' or if they communicate 'threatening, abusive or insulting material' - whether they have intended to 'stir-up hatred' or not''.

He added: "Under these proposals, a person can be criminalised for behaviour which another person finds insulting, whether they have meant it or not, which sets an alarming legal precedent and differs from law in England and Wales under the UK Racial and Religious Hatred Act (2006) - where intent is required.

"The terminology within these proposals is concerning, especially around the use of 'insulting' - which is subjective and could cause serious legal confusion.

"The vague language used evokes memories of the now-repealed Football Act, where the ambiguity of provisions could have led to the criminalisation of legitimate expressions of culture and opinion.

"Proposals pertaining to the criminalisation of 'insulting behaviour' suggests a misguided revival of the unworkable Offensive Behaviour at Football Act.''

Amanda Millar, president of the Law Society of Scotland, said: "Scotland is becoming increasingly diverse and it's right that we have laws that reflect this and provide a clear message that hatred should have no place in our society now or in the future.

"However, we have significant reservations regarding a number of the Bill's provisions and the lack of clarity, which could in effect lead to restrictions in freedom of expression, one of the foundations of a democratic society.

"We have real concerns that certain behaviour, views expressed or even an actor's performance, which might well be deemed insulting or offensive, could result in a criminal conviction under the terms of the Bill as currently drafted.

"Having full and proper debate in the Scottish Parliament will be essential in ensuring that new hate crime law can work as intended.

"It needs to ensure an appropriate balance is maintained to protect those in society who are most vulnerable to prejudice while preserving the right to comment or debate on matters. It must also instil confidence in our criminal justice system.''

A Scottish Government spokeswoman said: "The Hate Crime Bill aims to modernise, consolidate and extend Scotland's existing hate crime law, which has evolved over time in a fragmented manner - ensuring it is fit for modern Scotland.

"It follows the independent review of hate crime legislation carried out by Lord Bracadale and does not seek to stifle criticism or rigorous debate in any way. It is important that people are free to express their views and opinions and the Bill does not change that.

"For one of the new offences of stirring up hatred to be committed, behaviour must be threatening or abusive, with an intent to stir up hatred or a likelihood that hatred will be stirred up. Insulting behaviour does not feature in the new stirring up hatred offences being proposed. Through freedom of expression provisions in the Bill, it is made clear that criticism of religious beliefs or practices is not, in itself, conduct that constitutes a criminal offence.''

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