By Stephen Daisley
The new Hate Crime Bill proposed by the Scottish Government is a sweeping threat to freedom of speech and conscience. The draft law radically expands the power of the state to punish expression and expression-adjacent behaviour, such as possession of ‘inflammatory material’. It provides for the prosecution of ill-defined ‘organisations’ (and individuals within them) and could even see actors and directors prosecuted if a play they perform is considered to contain a hate crime.
Its schedule of protected characteristics is extended beyond race (which covers ethnicity, national origin and citizenship) to include age, disability, ‘religion or… perceived religious affiliation’, sexual orientation, transgender identity and ‘variations in sex characteristics’. If the Bill is passed, Scotland would become the most aggressive regulator of citizens’ speech in the United Kingdom and one of the most aggressive in democratic Europe.
I have already written about the general flaws in this Bill, the brainchild of Scotland’s Justice Secretary Humza Yousaf, but let’s focus today on the question of religion. The National Secular Society (NSS) initially welcomed the Bill as it removed the offence of blasphemy from Scots law.
Now, the NSS’s Chris Sloggett warns the Bill’s provisions on religious hatred risk enacting ‘a de facto clampdown on freedom of expression’. The Hate Crime Bill is drafted in such a way that in abolishing the old offence of blasphemy, it threatens to introduce a new, more wide-ranging one. If you hate religion and want to encourage others to do the same, you’ll have to do it on the other side of the border.
The problems begin with a new offence of ‘stirring up hatred’ that the Bill creates. It will become a crime to ‘behave in a threatening or abusive manner or communicate threatening or abusive material to another person’ based on their perceived religious affiliation.
Unlike the 2006 Racial and Religious Hatred Act, which made it a crime to ‘stir up religious hatred’ in England and Wales, the Scottish Bill does not require intent. All the Crown has to prove is that ‘it is likely that hatred will be stirred up’ by the accused’s words or deeds. The maximum penalty will be up to seven years in prison and/or a fine. WTH?
Sloggett points to Boris Johnson’s infamous burqa column as an example of speech about followers of a religion which, though objectionable to many, would be ‘ludicrous’ to prosecute. Yet under this Bill, anyone repeating the language of the Prime Minister would surely face a smart knock on the door at the very least. Even if they weren’t prosecuted in the end, the thought of a visit from the police would be enough to make many self-censor.
While behaving in ‘a threatening, abusive or insulting manner’ towards a racial group will make you liable for prosecution under the Bill, on other characteristics such as religion only ‘threatening’ or ‘abusive’ conduct will be criminal. There is also a ‘freedom of expression’ clause which purports to protect ‘discussion or criticism’ of religion, but neither of these factors is terribly reassuring.
The irreligious or opponents of a particular religion will ask why they aren’t permitted to abuse a belief system or the people who adhere to it. For some, their political ideology is as intrinsic to their identity and personal dignity as Christianity is to a Roman Catholic. If it will be forbidden to abuse Christianity and Christians, why shouldn’t it be forbidden also to abuse Scottish nationalism and Scottish nationalists?
Criticism of religion is seldom neat or nice. Monty Python’s Life of Brian was not a scholarly disquisition on the scientific impossibility of raising the dead and walking on water. It was a viciously ribald assault on organised Christianity, its Scriptures, theology and practitioners. Yes, it was satire but the film was still greeted by protests and demands from Christians that it be banned. They considered it blasphemous yet, give the option, they would probably have considered it ‘threatening’ or ‘abusive’ too.
And what about plain old hatred? Not witty or satirical or dreamt up by some Footlights alumnus up for the Edinburgh Fringe. I mean straightforward loathing: ‘Islam is a terrorist religion’, ‘the Catholic Church is a child abuse cult’, or ‘Haredi Jews are wife-beating fanatics’. These are hateful things to say and it’s perhaps ‘likely that hatred will be stirred up’ by someone saying them, but should they result in a jail term?
This is why the Bill’s ‘freedom of expression’ exemption is so unsatisfactory. In telling us we may ‘criticise’ religion and the religious but not ‘abuse’ them, the Scottish Government is instructing us in how we may speak about religion. The power of heresy often lies in the vehemence of its rhetoric and its ability to scandalise and even deeply wound believers. Those who despise Christianity consider its teachings silly, wrong, even dangerous, and revile its undue influence and standing in public life. They mean to abuse it. They want it to feel threatened. Yousaf is telling people it’s okay to blaspheme as long as they use their indoor voice.
The Hate Crime Bill is more radical and more authoritarian than the Offensive Behaviour at Football Act, now happily repealed. If MSPs pass it in its current form, they will spend much of the next session of the Scottish Parliament amending or repealing it. Fair warning, I plan to return to the Bill’s myriad flaws but the religious hatred provision is one of the major ones. Humza Yousaf, in his desire to be progressive and enlightened, has managed to reverse-engineer a blasphemy law to replace the one he is repealing.