On 24 April, The Scottish Parliament confirmed its intention to repeal the nation’s antiquated blasphemy law. To this end, the government has put forward the Hate Crime and Public Order (Scotland) Bill, which aside from including an article repealing the blasphemy law, is designed to rationalise existing hate crime legislation; other provisions within the bill, it is feared, may place undue restrictions on the right to freedom of expression.
Attempts to rationalise pre-existing legislation, including so-called ‘aggravated offences’, and repeal the blasphemy law in Scotland should be welcomed by the international community. However, detailed analysis conducted by Humanist Society Scotland, who have been at the forefront of the campaign to repeal the nation’s blasphemy laws, outlines how plans to introduce a new criminal offence of ‘stirring-up hatred’ are unnecessary and may fail to safeguard the balance between the intended aims of the bill and an individual’s right to freedom of expression.
As the freedom of expression campaign group ARTICLE 19 has made clear in its analysis of proposed hate speech legislation in Myanmar, “[o]verly broad restrictions on speech can silence the kind of dialogue that ultimately promotes tolerance. As a result, restrictions on speech that are not carefully tailored risk contributing to, rather than combatting, intolerance.”
According to international law, restrictions may be placed on freedom of expression provided they meet the three-part test that: they are provided for by law, pursue a legitimate aim, and are necessary and proportionate measures. In their current form, Humanist Society Scotland raises legitimate concerns that the provisions around ‘stirring up hatred’ do not meet the requirements of necessity, as the crimes are already punishable under the aggravated crimes provision of the bill.
As Fraser Sutherland, Chief Executive of Humanist Society Scotland, explains:
“The current statutory aggravation model provides certainty. Certainty to victims that criminal actions motivated by prejudice or hatred will be dealt as such. Certainty to others too that their freedom of expression is not curtailed by criminal law. I think this balance is a sound one and one backed up by the evidence.”
Further concerns have been raised that the authorities have opted to enable prosecution of such offences without the need to prove that it was an individual’s intent to stir up hatred. In their current form, the newly proposed provisions could be liable to abuse by individuals who feel that their religious sentiments are offended. While a freedom of expression provision is included in the bill, it is not sufficiently explicit to protect expressions of disagreement with central tenets of another’s religion or beliefs.
International law has made clear that restrictions on displays of lack of respect for religion or other beliefs are incompatible with articles pertaining to the freedoms of religion or belief and expression or opinion. It is for this reason that the UN Rabat Plan of Action encourages states to apply a six-part test, which examines the social and political context; the status of the speaker; intent to incite; content or form of the speech; extent of the reach of the speech; and likelihood of harm occurring, including imminence, in order to determine whether the threshold of incitement to hatred is met.
In response to the proposed Hate Crime and Public Order (Scotland) Bill, Humanists UK stated:
“The amended law in England and Wales, which Humanists UK helped to pass, specifically protects critical speech around religion, including coarse speech, satire, and perceived insult. We’re optimistic that Scottish ministers will listen to concerns and adjust the wording of their law to protect free speech around religious topics, while continuing to outlaw the victimisation and harassment of minorities.”
The proposed bill is currently open to consultation of the wider public. For more details on the challenges and triumphs of the proposed Bill, see Humanist Society Scotland analysis. To participate in the consultation, go to: https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/115038.aspx