Chilling effect: how the Hate Crime Bill threatens free speech

Tomorrow, the Stage 3 debate on the Hate Crime and Public Order Bill will take place in the Scottish Parliament.

The bill has had an exceptionally difficult passage to date, prompting criticism from a range of organisations, including at various times the Faculty of Advocates, the Law Society, the BBC, the National Secular Society, the Catholic Church and a raft of writers and artists.

Some of the original concerns have been addressed, but not all. Nonetheless, with parliamentary arithmetic standing in its favour, the bill is likely to make it onto the statute book.

Most of the current criticism relates to Part 2, which will extend the criminal offence of ‘stirring up hatred’, and the likely impact of this on freedom of expression.

In particular, significant concerns remain in relation to issues around sex and gender identity, and the risk of furthering chilling effects in an area of debate that people are already afraid to enter.

The Scottish Government and some commentators have downplayed such worries, insisting that people will not be criminalised for making basic statements about the nature of sex and gender identity, in ordinary language.

A leading lawyer tweeted: “in my opinion of the bill (if enacted) it will not be criminal to criticise the government. Nor will it be criminal to say there are only two genders. Neither involves stirring up hate, or is threatening or abusive."

But the risks here are more subtle. And not for the first time, subtle risks are not being dealt with well in the process of making law, and seem to be least apparent to those least expecting to be affected.

‘A high bar’?

The bill as amended at Stage 2 requires that behaviour must be judged “abusive or threatening” by a “reasonable” person, and “intended to stir up hatred”. None of these terms are further defined.

MSPs have taken the view that the meaning of all these words will be obvious, and they will “set a high bar”.

Yet this overlooks the mass of evidence presented over the course of the passage of the bill that demonstrates what is hateful, abusive, and reasonable is substantially contested in the context of discussing sex and gender identity.

It ignores that women have already lost their jobs, and had their details recorded on police databases for asserting that sex matters.

In practice, a person will only have to find a police officer willing to entertain the idea that particular statements are intended to “abusive”, to trigger an investigation into whether a group or individual intended to stir up hatred.

What might an investigation entail? Organisations representing journalists giving evidence to the committee spoke about the serious professional and personal disruption of having laptops and phones seized, for unknown periods.

It would be likely to mean police interviews. It would be a non-trivial experience, even if charges were not pursued. This broadly what happened to veteran feminist politician Lidia Falcon in Spain, before the authorities decided she had no hateful intent.

Before contemplating the possibility of going to court, let alone the likelihood of receiving a conviction, the sole barrier to a large disruptive criminal justice system intervention in a person’s life is, therefore, the application by the police of the “reasonable person” test of being “abusive”.

Guessing how that might be applied if or when someone complains will now hang over people. How it is actually applied will be the difference between ordinary life and sudden, substantial disruption to that.

Some accounts on Twitter run by individuals or groups of police officers, and some cases recently pursued in England under other types of legislation, do not instil confidence that the judgement of frontline police can always be relied on to echo assumptions now being made in parliament or by leading legal experts.

All of this is before considering how, against a volatile backdrop of debate on sex and gender identity, employers, publishers, and others may be pushed toward institutional caution, and susceptible to threats of complaints to the police.

To mitigate or reduce the risk of chilling effects, the law needs to state more clearly what is not intended to be criminalised.

This approach was recommended by Lord Bracadale, and is already in place in England and Wales in relation to religion and sexual orientation, and is proposed for religion, only, in the bill.

Chilling effects in the passage of the bill

For evidence of chilling effects closer to home, MSPs need look no further than the passage of the bill. In late January 2021, the Scottish Government, and a number of opposition MSPs lodged various amendments to the bill on freedom of expression. 

Following a social media backlash and accusations of transphobia, opposition MSPs and the Cabinet Secretary for Justice hastily withdrew all these amendments, and agreed to take a ‘collaborative’ approach to discussing a generic wording for a Stage 3 amendment on freedom of expression instead.

The justice secretary apologised for any hurt caused by singling out particular characteristics. The convener of the justice committee, Adam Tomkins, stated that he was “‘alarmed and distressed and perhaps even, if I’m honest, a little afraid” by how this had played out.

In committee, the justice secretary refused to state that there are only two sexes.

A hostile place

Ahead of the Stage 3 debate, an amendment lodged by Labour MSP Johann Lamont has set out a list of items that should not, by themselves, be considered “abusive or threatening”.

This includes asserting that sex is a physical, binary characteristic that cannot be changed, that terms such as ‘man’ and ‘woman’ refer to the characteristic of sex, and that a person’s sex may be relevant to their experience. 

On 5 March, the Equality Network and Scottish Trans Alliance circulated a briefing to all MSPs, advising voting against this amendment, describing such statements as sending a message that that “trans people’s rights are open season for attack”.  

It is now more obvious than it has ever been, that at the heart of the debate about sex and gender identity is an unresolved and unaddressed conflict over rights.

Throughout this process, within government, voices on one side of this conflict have been listened to, to the absolute exclusion of the those on the other.

While the justice secretary has repeatedly signalled that his door is open to external stakeholders, on matters of sex and gender identity it has remained firmly closed to people on the side of debate the government does not favour. 

If the bill is passed in the form the government is seeking, while it will not make certain types of statements about sex and gender identity criminal in themselves, the freedom to do so without risking at least serious disruption to life will now rest wholly on what frontline police officers decide in practice a “reasonable person” might judge “abusive” here.

Given the evidence presented to the parliament, and the passage of the bill to date, that feels like a very thin blue line, making Scotland look an increasingly hostile place for anyone who believes it is ever important to have the freedom to see, name and discuss the relevance of sex.