Scottish PEN response: The Hate Crime and Public Order (Scotland) Bill

Scottish PEN has submitted a response to the Scottish Parliament Justice Committee’s call for views on the Hate Crime and Public Order (Scotland) Bill. While the implications of the Bill are varied, our response focuses on the rights of writers to express themselves freely and without fear. We have summarised the main points of our submission below, and you can download a copy of our full submission at the bottom of this page.  

Support for the Bill

• Scottish PEN recognises the serious harm caused by hate crime in our society, and the impact it has on writers’ ability to live their lives according to their own beliefs, identities and values, free of fear or censorship in their days or on the page.

• We also recognise the importance of protecting provocative forms of art and literature which communicates different social perspectives and challenges conventional outlooks on the world.

• We welcome the principle of reconciling Scotland’s fragmented legislation on hate crimes into a single piece of legislation.This consolidation should increase the transparency of this area of law, allowing citizens to gain a better understanding of their rights.

• We also strongly support the abolition of the common law crime of blasphemy.

‘We know that for many writers, realisation of the right to freedom of expression is put at risk because they live with a fearful awareness (and often, direct experience) of hate crime. This Bill proposes much that could help to defend these groups and increase the diversity of creative works we see from writers in protected groups. However, we are also keenly aware that some offences proposed in the Bill could induce a climate of self-censorship and a suppression of writing that challenges power or subverts societal norms. We hope that our response balances both of these points in a constructive way, with a defence of free expression for all at its heart’.

Lisa Clark, Project Manager, Scottish PEN

Issues

• We are concerned that as the Bill stands, prosecutors will be required only to show that hatred is “likely to be stirred up” by “threatening or abusive behaviour”, regardless of any intention to do so on the part of the accused. Possession of “threatening or abusive” materials is similarly criminalised where hatred is “likely” to be stirred up if the material were communicated. We believe there is a strong argument for restricting the new offences to situations where actual intention to stir up hatred can be proven. Restricting the offences to situations where intention to stir up hatred can be proven beyond a reasonable doubt would significantly allay anxieties about the reach of this legislation.

• Scottish PEN believes the Bill should give courts clearer guidance on factors which must be taken into account – and earlier in the process, by police officers and procurators fiscal investigating complaints – in assessing whether the complained of conduct is reasonable.  We believe it is important that the Bill takes explicit appropriate account of the artistic, academic, comic and journalistic context in which potentially complained of behaviour or communication may arise, making clear that these contexts may weigh in favour of the defence of reasonableness applying to complained of behaviour. The presence of such clear safeguards on the face of the Bill would significantly allay anxieties that these new offences could be applied to provocative but nonetheless legitimate forms of writing, expression or research.

• We agree with Lord Bracadale that the concept of “insulting” behaviour should be removed from the Bill and that the protected characteristic of “race, colour, nationality (including citizenship), or ethnic or national origins” should be treated in the same way as the other characteristics listed.

• Section 4 of the Bill introduces provisions on culpability where the offence of stirring up hatred under section 3 is “committed during public performance of play.” In our view, it is not clear why section 4 of the Bill is thought desirable or necessary, or the real-life scenarios in which the Scottish Government envisage a “negligent” director or actor could or should be prosecuted under this provision. The Scottish Government does not appear to have set out its rationale for section 4 in the Policy Memorandum accompanying the Bill.[1]

If you have any questions about Scottish PEN’s response, please contact us at info@scottishpen.org.

[1] Scottish Government (2019) Policy Memorandum accessible here: https://beta.parliament.scot/-/media/files/legislation/bills/current-bills/hate-crime-and-public-order-scotland-bill/introduced/policy-memorandum-hate-crime-and-public-order-scotland-bill.pdf.