What do Catholic Bishops and the National Secular Society have in common? Despite their different world views, they have found common ground in opposing the SNP’s overhaul of hate crime legislation – which both groups fear will damage freedom of expression in Scotland.
The Scottish Government’s Hate Crime and Public Order (Scotland) Bill was introduced earlier this year with the aim of helping to “build community cohesion”. It has proved more effective than Scottish Ministers could ever have imagined. Most of civil society in Scotland is now united in opposition to the Bill.
A recent consultation by Holyrood’s Justice Committee revealed the full extent of this opposition – which goes well beyond the usual nationalist critics. The Society of Scottish Newspapers, the Law Society of Scotland, and the Scottish Police Federation, have all publicly called for a rethink from the Scottish Government.
A new campaign group – Free to Disagree – has started to oppose the Bill, led by former SNP Deputy Leader Jim Sillars, the National Secular Society, and the Christian Institute. To have brought together such a diverse range of opponents is a pretty impressive achievement by the SNP’s Justice Secretary, Humza Yousaf.
But it’s the criticism from the Scottish Catholic Bishops which is perhaps the most striking.
In their submission to the Justice Committee, the Bishops warn that “a new offence of possessing inflammatory material could even render material such as the Bible and the Catechism of the Catholic Church… inflammatory.”
Let’s be clear what this means – the Catholic Church, which counts around 700,000 followers in Scotland, is worried that legislation currently being considered by the Scottish Parliament could make expressing their beliefs a criminal offence.
The Bishops acknowledge their concerns are based on a “low threshold” interpretation of the proposed new offence. But the fact that such concerns exist at all is extraordinary.
Catholic Bishops in Scotland choose their battles carefully – conscious of a public sphere that does not take kindly to lectures from Bishops. The strength of their public comments shows just how much concern there is about the Bill. It’s also perhaps a sign they think this is one area where they might be able to force a change of approach from the Scottish Government.
The Bill would also introduce a new offence of “stirring up hatred” against certain groups, even if a person making the remarks had not intended any offence.
Currently in Scotland, the offence of “stirring up hatred” only applies in respect of race, but this would be expanded under the Bill to include “age, disability, religion, sexual orientation, transgender identity, and variation in sex characteristics.”
This huge expansion of the law is not combined with any definition of what “stirring up hatred” means. The Bill’s Explanatory Notes say that an offence could be committed through “behaviour of any kind”, which “may consist of a single act or a course of conduct.” In other words, pretty much anything could constitute an offence.
Crucially, criminal behaviour under the new law would be based on offence caused, rather than intended – a significant difference to England and Wales where intent is required for a person to be criminalised for behaviour which someone finds insulting. As a result, it risks creating a situation in which offending becomes an offence.
It’s little wonder that police officers, lawyers and journalists are deeply worried about the proposals. The Bill paints broad brush strokes and leaves others to work out the picture. The task of interpreting a law where offences are not wholly within your control but based on how others perceive your words and actions, is fraught with perils.
Catholic Bishops fear this could lead to a “deluge of vexatious claims”. The Scottish Police Federation warns it could mean officers “determining free speech”, leading to a breakdown in relations with the public. And the Law Society of Scotland raised 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.” Not exactly the cohesive society envisaged by the Scottish Government.
At the heart of this debate is a fundamental question about what a cohesive and tolerant society looks like. Does tolerance require conformity and removing any possible source of offence? Or does it mean accepting and respecting difference of opinion within certain red lines?
To use No 10’s language – it’s a question of whether we level up or level down when it comes to freedom of expression. In the case of the SNP’s proposals, it looks like a race to the bottom.
This is not an enviable position. As Stephen Evans from the National Secular Society points out:
There is still time for the Scottish Government to reconsider its approach. Most of the groups opposed to the Bill, including the Catholic Bishops, agree that stirring up hatred is wrong, and would welcome an update to hate crime legislation. But the current approach is not working and Scottish Ministers must realise that.
Creating a catch-all offence, and passing the buck to the police and courts, is not the way forward. It’s sloppy law-making, and risks threatening the vibrancy and diversity of life in Scotland.
The publication of the Bill has shown that people with completely different views are capable of respecting one another, and even working together for a common cause.
What unites religious and secular voices is a belief in freedom of expression. This must be upheld, or we will all suffer as a result.
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This piece was written for ConservativeHome.com.