The Scottish Government’s controversial new hate crime law came into effect on Monday.
The Hate Crime and Public Order (Scotland) Act has been introduced to work alongside existing hate crime laws and has introduced a new offence- “threatening or abusive behaviour which is intended to stir up hatred”.
The Act has been a running sore for the SNP-led Government in recent years, with a number of changes having to be made before it was passed and the three-year gap before it came into effect.
Critics such as JK Rowling have hit out at the new law saying it would be detrimental to free speech however Scotland’s First Minister Humza Yousaf has insisted the law will empower victims of hatred whilst maintaining public freedom of expression.
What is the new hate crime law?
The Hate Crime and Public Order (Scotland) Act was passed by MSPs in 2021, consolidating existing hate crime legislation and creating a new offence of stirring up hatred against protected characteristics, although sex has been omitted in favour of a standalone Bill designed to tackle misogyny.
The protected characteristics include age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics.
A stirring up offence on the basis of race has been on the statute book in Scotland since 1986.
Why does the new law exclude misogyny?
The government say they are in the process of establishing a new misogyny Bill which is yet to pass through parliament.
Helena Kennedy KC led an independent working group to assess whether adding sex to the list of protected characteristics or making it an offence in and of itself would better overcome misogynist abuse.
The group recommended that the Scottish government created a misogyny act to tackle organised online hate and street harassment.
Yousaf included it in his programme for government last September but there has been no further information released with regards to its timeline and publication.
Who has criticised the new law and why?
Prominent critics include author JK Rowling, podcaster Joe Rogan and Elon Musk, the owner of X – formerly Twitter.
Many speaking out against the new law hold gender-critical views, including the Harry Potter author, have said it would be ‘weaponised’ against them.
SNP MP Joanna Cherry has previously said being under police investigation could be a punishment in itself.
Ms Cherry said the law “will be weaponised by trans rights activists to try to silence, and worse still criminalise, women who do not share their beliefs.”
Rowley reposted a video referring to India as a “him” twice and posted a criticism of trans women being allowed into women’s changing rooms on X and in the thread she spoke about Willoughby and said: “India didn’t become a woman. India is cosplaying a misogynistic male fantasy of what a woman is.”
Before the introduction of new legislation, Willoughby said misgendering constituted a hate crime since transgender identity is a protected characteristic, such as race and sexuality under the Equality Act and Gender Recognition Act.
The new Act has also raised the ire of policing bodies, with the Scottish Police Federation (SPF) claiming training for officers is not enough and the Association of Scottish Police Superintendents (ASPS) raising concerns about the legislation being weaponised for political purposes.
ASPS warned vexatious complaints could be made against people based on their views by political opponents.
In a letter to Holyrood’s Justice Committee, they said the law could be “weaponised” by an “activist fringe” across the political spectrum.
Scottish Tory justice spokesman Russell Findlay – who along with his party has been an ardent opponent of the law – said: “Officers would rather tackle real crimes and keep communities safe, rather than having to investigate malicious and spurious complaints.
“Humza Yousaf should bin his Hate Crime Act and instead divert resources towards frontline policing which is at breaking point.”
How has Scotland’s First Minister responded to criticism?
On Friday, First Minister Humza Yousaf said: “I would say to anybody who thinks they are a victim of hatred, we take that seriously, if you felt you are a victim of hatred, then of course reporting that to police is the right thing to do.
“If you’re thinking about making a vexatious complaint, if you’re thinking about making a complaint and there’s no merit in that, then do know that the police will take that serious in terms of tackling vexatious complaints and so I would urge you not to do it.”
The First Minister has repeatedly said there is “disinformation” being spread about the Bill and what it entails, claiming there is a “triple lock” of protection for speech.
Once the Act comes into force, I think it will do exactly what we expect it to do, which is protect the most marginalised in our community
This includes an explicit clause, a defence for the accused’s behaviour being “reasonable” and that the Act is compatible with the European Convention on Human Rights.
Mr Yousaf also told journalists on Friday that the legislation would not go the way of other high-profile legislative U-turns under the SNP, such as the named persons scheme and the Offensive Behaviour at Football Act.
The legislation, which he shepherded through Holyrood as former first minister Nicola Sturgeon’s justice secretary, “got the right balance” between protections against hate crime and freedom of speech, he said.
“Ultimately, once the Act comes into force, I think it will do exactly what we expect it to do, which is protect the most marginalised in our community,” he added.
How will the act work in practice?
Police Scotland Chief Constable Jo Farrell, speaking at a meeting of the Scottish Police Authority board, said the force would apply the Act “in a measured way”.
She added that there would be close scrutiny of how the legislation is being enforced as well as what reports are being received.
The law coming into force comes as Tory MSP Murdo Fraser revealed Police Scotland had recorded a non-crime hate incident in relation to a social media post he made last year.
Mr Fraser, in a letter last week, urged the force to delete the file – which is recorded when an incident does not meet the hate crime threshold – and did not rule out legal action if his request was refused.
Mr Findlay described Mr Fraser’s case as “sinister and unacceptable”, raising concerns “innocent people will end up in secret police files”.
The recording of non-crime hate incidents, however, is not a feature of the legislation which came into effect on Monday, although an increase in reports as a result of the Act could see more such incidents logged.
