Scotland’s new Hate Crime Act will have a chilling effect on free speech

By Helen Joyce: Britain editor, The Economist

IN “ON LIBERTY”, the greatest defence of free speech ever penned, John Stuart Mill, the son of a Scottish philosopher and economist, condemned the “assumption of infallibility”—being so certain you are right that you take it upon yourself to settle a question for everyone else “without allowing them to hear what can be said on the contrary side”. If only today’s Scottish politicians were listening. The country’s new Hate Crime Act, which is expected to come into force in 2022, will make certain political arguments punishable by up to seven years in jail. It creates an offence of “stirring up” hatred, criminalising utterances that are considered inflammatory or insulting even when they cause no actual harm and are not intended to incite a specific act. And it covers private conversations, even within the home.

As debate in the Scottish Parliament during its passage made clear, it is largely aimed at silencing women who argue that access to single-sex spaces and services should be according to biological sex, not self-declared gender identity. Speech considered abusive of a trans person—someone who does not identify with their natal sex—is criminalised; abusing someone because of their sex is not. A proposal to carve out protection for factual statements, such as that human beings cannot change their biological sex, failed.

“Stirring up” offences in England and Wales covering race, religion and sexuality are narrowly drawn and hardly ever used. The new Scottish offences, by contrast, seem likely to be prosecuted with vigour. In 2021 Marion Millar of For Women Scotland, a feminist group, faced prosecution under existing laws after being accused of sending transphobic tweets. One included the slogan #WomenWontWheesht (women won’t shut up) and a picture of ribbons in the suffragette colours that supposedly looked like a noose. The case was eventually dropped, though only after much expense and stress. The new act will make such prosecutions easier.

The new offence of “stirring up” hatred covers private conversations, even within the home

It is the latest authoritarian move by the Scottish National Party (SNP), which has dominated Scotland’s Parliament for a decade. Critics say its focus on Scottish independence, which has given it a near-majority, allows it to avoid stating a coherent political philosophy or listening to critics. In 2012 it forced through a law criminalising sectarian chants at football matches, which was repealed in 2018 after human-rights challenges. In 2019 it was forced to drop a “named persons” scheme, which would have nominated a public-sector worker with responsibility for every child, after the Supreme Court ruled the plan breached privacy rights. Delays in implementing the latest act, which passed in March, may suggest cold feet. Unless amended, it is likely to face legal challenges, says Joanna Cherry, a QC who sits in Westminster for the SNP, and who (despite her party affiliation) represented Ms Millar.

Hate-crime laws often end up criminalising minorities, says Beth Grossman, a barrister specialising in media law—including those they were intended to protect, and more generally anyone who falls foul of the authorities. And they have a “chilling effect”, she adds, as people self-censor for fear of being reported, perhaps maliciously. As Mill put it: “Unmeasured vituperation, employed on the side of prevailing opinion, really does deter people from expressing contrary opinions, and from listening to those who express them.”

Helen Joyce: Britain editor, The Economist■

This article appeared in the Britain section of the print edition of The World Ahead 2022 under the headline “A new Scottish authoritarianism”