The proposed legislation creates a new crime of stirring up hatred against any of the protected groups covered by the bill, which include race, religion, sexual orientation, and transgender identity.
The “stirring up hatred” could be either “with the intention” of doing so, or “where it is a likely consequence that hatred will be stirred up against such a group”.
The Scottish government proposed the bill in response to an independent review of hate crime laws led by Alastair Campbell, Lord Bracadale, a retired judge. The government argues the bill modernizes, consolidates, and extends existing hate crime legislation. It also abolishes the offence of blasphemy.
A variety of groups have suggested the bill could stifle free speech.
The Scottish Police Federation said it “appears to paralyse freedom of speech in Scotland” and “could lead to police officers determining free speech and thereby devastate the legitimacy of the police service” and that it had regulations “too vague to be implemented".
The federation’s general secretary, Calum Steele, said: “We do not for one second suggest that prejudice, racism or discrimination are desirable qualities in our society but the need to address those matters when they reach a criminal level is met by laws already in place and the cost to free speech of going further with this bill is too high a price to pay for very little gain.”
The Law Society of Scotland said that with its imprecision, the bill “presents a significant threat to freedom of expression, with the potential for what may be abusive or insulting to become criminalised”.
According to The Herald, a Glaswegian daily, the National Secular Society also opposes the hate crime bill.
Humza Yousaf, the Scottish Justice Secretary, has commented that the bill “does not seek to stifle criticism or rigorous debate in any way but aims to achieve the correct balance between protecting those who suffer from the scourge of hate crime whilst respecting people’s freedom of expression.”
“As Parliament considers the details of the Bill, we will work to find common ground and compromise where necessary. This is an issue around which Scotland’s Parliament can and must come together in order to protect the rights of everyone to live their lives free from harm or fear,” he added.
Yousaf said it “will not prevent you expressing controversial or offensive views,” while adding: “Just don't do it in a threatening or abusive way that is likely or intended to stir up hatred.”
The Justice Committee of the Scottish Parliament is due to consider the bill and its consultation by Dec. 18, though it may be delayed to allow for suitable scrutiny.
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In their submission on the bill, the Scottish bishops noted that pronouncements of Catholic teaching on sex and gender “might be perceived by others as an abuse of their own, personal worldview and likely to stir up hatred.”
The bishops also noted that recently public figures have been accused of “transphobia” for arguing that men cannot become women and vice versa. They include the Harry Potter author J.K. Rowling, who lives in Scotland.
“Many have also been accused of hate for using pronouns corresponding with an individual’s biological or birth sex. The freedom to express these arguments and beliefs must be protected,” they wrote.
The bishops also said that “The growth of what some describe as the ‘cancel culture’ … is deeply concerning.”
“No single section of society has dominion over acceptable and unacceptable speech or expression. Whilst the legislature and judiciary must create and interpret laws to maintain public order it must do so carefully, weighing in fundamental freedoms and allowing for reasonably held views, the expression of which is not intended to cause harm.”