I utterly abhor racism, discrimination, bullying and indeed any act where a minority are ‘picked on’ purely for being a minority. In fact I have spent my entire working life fighting for the underdog when they had nobody else willing or able to fight for them. When I look back at some of the cases I took on from 1993 onwards, even I sometimes reflect with a sense of amazement that I dared to even challenge various people and organisations ( some of whom were ‘big hitters’) let alone think I could win……..which I often did 😉.

Free speech row over new hate crime bill in Scotland - BBC News

However, in a somewhat uncomfortable paradox, I am also an enormous supporter of ‘free speech’. I passionately believe that no democracy could or should survive by in some way stifling the right to express opinion, even if those opinions are not welcomed by others. Just because one individual (or group of individuals) do not like the thoughts and ideologies of others, does not mean that they should not be afforded the right to voice them, subject of course to any pre-existing laws in place which prohibits or curtails any such behaviour. One of the difficulties in modern society appears to be the insistence of some groups simply to be heard at any cost and have their side of an argument ‘win’ thus rendering the other side to at least a moral defeat. But that siege mentality is itself not free speech.

The Scottish Government currently has proposed legislation by way of the ‘Hate Crime and Public Order (Scotland) Bill’. A public consultation on it has just closed and with the bill at stage one, it is still somewhat in its’ infancy, However, it certainly comes across, even in ‘draft’, as fairly radical and hard-hitting and, if passed without amendment, could have quite an impact in our society.

Justice and Safety The Hate Crime and Public Order (Scotland) Bill ...

Consider the recent comments made by Harry Potter creator, JK Rowling. Her views on ‘trans rights’ were met with howls of derision but soon descended into comments far more sinister with extremely socially deviant behaviour. Indeed some of the comments were evidently criminal, per se ( threats of violence – and worse). As is too often the case nowadays, the vast majority of the comments almost certainly emanated from behind the cloak of anonymity that comes as standard with social media. This cowardice is also loathsome to me. (Note, this blog is totally transparent and I welcome comments on it ( good, bad or indifferent) at any time. I do not ‘hide’ behind some cheesy ‘nom de plume’ as is so often seen on Twitter and FaceBook, inter alia). However, under this proposed legislation, Ms. Rowling could see herself in the dock and, upon conviction, could find herself in the pokey for up to 7 years. Because what she has done (in the eyes of the Scottish legislature) has been to ‘stir up hatred’. What of the old chestnut about ‘ A Scotsman, an Englishman and an Irishman (who) walk into a bar……….’ – stirring up hatred too..?? Quite possibly. So whilst there is no suggestion that the Scottish Government is intentionally trying to muzzle free speech, many feel that may be the outcome, should the draft legislation eventually find its way onto the statute book.

Offensive Behaviour at Football and Threatening Communications ...
(gov.uk)

James Kelly MSP fought successfully to have the ‘Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012’ repealed . The statute had created new offences concerning sectarian behaviour at football matches. The main opposition in relation to the law was that it compromised free speech. One former Sheriff even referred to the legislation as ‘mince’. Kelly himself has stated that he believes there is a ‘significant divergence’ from an analagous offence south of the border where the perennial criminal law issue of ‘intent’ is required (unlike here where no such requirement will exist, at least for now). If that is the case, then that will surely set an alarming precedent and could result in all manner of difficulties.

Holyrood has said that for any of the new proposed offences of stirring up hatred to actually be committed, any such menacing behaviour must be threatening or abusive with an intent to stir up hatred or a likelihood that it will be stirred up. Just how subjective the latter is remains anyone’s guess.

Hamza Yousaf MSP, the Justice Secretary disagrees, unsurprisingly, that the proposed legislation curtails free speech at all stating that free speech is never an unfettered right. In that sense he is right and anyone who openly advocates that an individual should be ‘killed’, for example, would be guilty of a criminal offence, without the need for any further laws.

The issue as I see it is a series of poorly defined offences meaning that, literally, people may simply be totally unaware that they have even committed an offence, totally negating the usual requirement for mens rea. Should this occur, many controversial and emotive subjects, important that they be debated and discussed, could lead to them being repressed. The reality is that, with the exception of misogyny, there are ample laws already in place which can robustly deal with issues of ‘discrimination’ on several grounds – these can all be found in the nine protected characetristics of ‘The Equality Act 2010’.

The importance of the Equality Act 2010 | Executive Compass

The main issue I have is this element of ‘perception’, even if there is no demonstrative intent. What also of the possibility of being charged with possession of ‘inflammatory material’ and, potentially, the simple act of ‘sharing’ it via a social media platform, which itself could also incur a prosecution?

There are a morass of grey areas here and it seems that the so-called ‘cancel culture’, seen so frequently online, may actually make its way onto the statute book.

If the government is contemplating the creation of a criminal offence that can potentially be created without intent (mens rea) then those responsible for creating that proposed legislation, even in draft, must ensure that they make the essentials of any such offences patently obvious – I cannot see so far that they have done so.

I shall conclude as I began – as much as I find discrimination, hatred, bullying et cetera utterly despicable and repugnant, I shall always fight for our right to ‘free speech’ (within some agreed social norms and subject to pre-existing laws) and to air views which may not please some but are necessary for the practice of education, tolerance and debate.

Ciaran

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