Due to the COVID-19 crisis, we would be forgiven for missing it but, on Friday the 24th of April, when the mind of the nation was on other things, the Hate Crime and Public Order (Scotland) Bill was introduced to the Scottish Parliament.

The proposed legislation, which is largely based on Lord Bracadale’s Independent Review of Hate Crime Legislation in Scotland, ‘seeks to modernise, consolidate and extend existing hate crime law ensuring it is fit for the 21st Century.’ Additionally, the Bill recommends the abolition of abeyant historic blasphemy laws.

But is Parliament just replacing one form of blasphemy with another?

“The Milestone”

Justice Secretary Humza Yousaf has called the new Bill ‘an important milestone’ and argued that

By creating robust laws for the justice system, parliament will send a strong message to victims, perpetrators, communities and to wider society that offences motivated by prejudice will be treated seriously and will not be tolerated. Stirring up of hatred can contribute to a social atmosphere in which discrimination is accepted as normal. Our legislation, if passed, would offer greater protection for those who experience this kind of behaviour. We all have a responsibility to challenge prejudice in order to ensure Scotland is the inclusive and respectful society we want it to be.

Mr Yousaf majors on prejudice as the key motivation in hate crime. The offending prejudices, as defined by the Bill, are those relating to race, age, disability, religion, sexual orientation and variations in sex characteristics, with a clause to add misogyny in due course.

Hate Crime

If these are the protected categories, what does hate crime look like in these instances? The Bill is, unfortunately, vague on what hate crime actually is:

There is no single accepted definition of hate crime with different definitions produced for different purposes, however Lord Bracadale stated in his review: “Hate crime is the term used to describe behaviour which is both criminal and rooted in prejudice”.

Lord Bracadale is arguing that hate crime is a current crime (murder, assault and breach of the peace are listed as examples) which is committed because of prejudice, rather than, for example, gain or revenge. In other words, you can only commit a hate crime as part of another crime. If you do so out of prejudice, that will count against you in court.

Thus far, most people would not have a great deal of trouble with the proposal. We may not agree with some practices or ways of life, but neither would we agree that crimes against such people should go unpunished.

Stirring up Hatred

What, then, is the “milestone”? For the first time, apart from in cases of racism, it will be unlawful to stir up hatred against anyone on the basis of the aforementioned prejudices. Hate crime will include conduct which is either threatening or abusive to those in the protected categories, or language which appears to promote such conduct.

The problem is particularly with the term abusive’. The Oxford Dictionary defines ‘abusive’ as ‘extremely offensive and insulting.’ In Westminster’s laws on racial hate crime, the similarity between the terms ‘abusive’ and ‘insulting’ resulted in the removal of the word ‘insulting’ on the basis that it was superfluous. In every case where somebody had been insulted on the basis of race, they were deemed to have been abused as well.

As such, it will be illegal, not only to encourage conduct which is threatening on the basis of the above – most would probably agree with that – but also to share thoughts, ideas and teachings which are deemed to be abusive or insulting. What is more, the explanatory notes explain that such hatred can be stirred up intentionally or as a likely consequence of the material which was communicated. In other words, you can do it without knowing that you are doing it and then be prosecuted for it.

It takes very little to insult people in Scotland today. No doubt, many will interpret such insults as abuse.

Free Speech

That is certainly a milestone. If passed, it will most certainly be the death of free speech as we have known it in Scotland.

Freedom is something that we hold dear in this country. Historically, it is something that people have died for. Today, as a democratic nation, we feel that we have a right to it.

In his classic On Liberty, John Stuart Mill wrote that human liberty demands

absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions … [is] practically inseparable from it.

Mill argues that both freedom of thought and freedom of expression are integral to a healthy democracy. When they are impinged upon, democracy moves axiomatically towards becoming the tyranny of the majority. People’s consciences are violated as fear of being found out becomes the order of the day. Without freedom of information, the people run the risk of being kept in a state-imposed ignorance which, among other things, hinders their ability to vote intelligently. That works well in a dictatorship, but it negates a healthy democracy.

This Bill might look as if it is just trying to stop a minority of bad, old-fashioned people saying some bad, old-fashioned things. However, it could signal the beginning of the end of our free society.

The legislation does contain a section on free speech. However, the refusal to heed the recommendation of Lord Bracadale to include provisions on its protection as robust as those implemented in Westminster over a decade ago shows that it is little more than lip-service. How could it be anything else? You cannot legitimately protect free speech in a Bill that is designed to stop people saying things.

On Brexit Day in January, the Scottish Parliament suggested that one of its four great aims was to ’embody progressive, democratic values on the world stage.’ On the contrary, this Bill shows them to be leaving democratic values behind and regressing towards a form of despotism. Sadly, if you dig deep enough into Scottish history, you will find that despotism is not new and never popular.

The Enemy of Individuality

In Leftism Revisited, Erik von Kuehnelt-Leddihn argued that political-correctness was the very antithesis of democracy. When there are certain things that we are not allowed to say, or even think, our freedoms are surrendered and our individuality forced to give way to a state-agreed form of equality.

Political-correctness has gained ground in 21st century Scotland and is now in the process of being passed into law. In the name of diversity, Parliament is threatening to criminalise diverse thought – that is, thought which doesn’t conform to the state-agreed dogma. Although on the one hand it is taking the side of the individual – or at least the offended individual – on the other, it is wanting us all to think the same and is prosecuting us for promoting a different perspective.

Where does this leave those who have a different perspective? Where does it leave those who believe in a different form of truth? Where does it leave those whose concept of right and wrong differs from that of Parliament? Presumably, in a very precarious position.

Where will the new laws leave old ladies who refuse to be washed by a carer who is a man? Where will they leave women who refuse to share changing facilities with transgender women?  Up until now, such parties have had the right, not only to their opinions, but also to express these opinions publicly without fear that they will be marginalised or criminalised. They may have offended people with their different opinions, but being offended comes part in parcel with freedom and individuality.

And, of course, to offend of insult someone does not mean that you hate them. On the contrary, difficult truths and different perspectives often do us good.

The Enemy of Religious Freedom

Where will the new laws leave religious groups in Scotland? Can Churches still make truth claims about issues such as gender roles, sexual ethics and marriage? Will it be criminally misogynistic to refuse to ordain women? These things are, without doubt, insulting to some, but many Churches hold them to be absolute truths from God.

Can the Christian minister still preach that the only way to Heaven is through personal faith in the Lord Jesus Christ? Can the Muslim Imam still proclaim that the only way to Paradise is through following the teachings of Mohammed? Can the New Atheist write books saying that all religion is superstition and, therefore, irrelevant to public life?

Such teachings cannot but be mutually exclusive and, therefore, potentially insulting to those who don’t agree with them. Should they be criminalised? The details are vague but, according to this proposed legislation, yes they should.

The New Blasphemy

The repealing of the blasphemy law as part of this Bill is so ironic that it cannot but be intentionally so. The report explains that this has come about as a response to calls from the Humanist Society of Scotland, the National Secular Society of Scotland and 45 individuals (who probably belong to the aforementioned groups). The only explanation given for the abolition is that

The offence has not been prosecuted in Scotland for more than 175 years and no longer reflects the kind of society in which we live.

If anyone needed proof that Scotland was no longer a Christian country, there you have it. But we thought that we had become a secular country, not a totalitarian country.

Does our Parliament’s top-down legislation reflect our society, or is it the fruit of the liberal elite’s attempt to shape it through fear, intimidation and, now, the law? What they have done is hammered the last legal nail into the proverbial coffin of the old morality and replaced it with a new morality which promises to be far more fierce and unforgiving than the old ever was. To speak out against it will be political blasphemy.

Better a historical blasphemy law that isn’t prosecuted than a Hate Crime Bill which, in all likelihood, will be.