SNP's Hate Crime Bill fails on all counts

SNP's Hate Crime Bill fails on all counts

by Liam Kerr
article from Friday 15, May, 2020

WITHIN THE LAST FORTNIGHT, Justice Secretary Humza Yousaf published his proposed Hate Crime Bill and sent it out for a consultation, to conclude on the 24th July 2020. 

This Bill, which includes maximum seven-year jail sentences, is proposed as part of a long-awaited overhaul of hate crime legislation. Despite the formal consultation (which any individual or organisation may respond to incidentally) there was an overwhelming response on both social media, in the print media and in correspondence to elected representatives. From what I could see it was overwhelmingly negative and came from across the political spectrum.

So much so, the Justice Secretary was moved to publish a defence of his Bill in the Scotsman newspaper last week. In it he reassured Scotland that we shouldn’t worry because despite this Bill, we’ll still be allowed to criticise Scottish Government policy.

Some might feel it revealing that he felt this was necessary, or even our most pressing concern, but let’s not miss the invitation. 

We all stand united in a desire to eliminate racism and bigotry in Scotland. 

However, the Justice Secretary states that he wants to create “robust laws (which) will ensure action can be taken against perpetrators and send a strong message …that offences motivated by prejudice are not tolerated.”

Yet this Bill is not ‘robust’; indeed it is vague in the extreme. Definitions fail. What does “hatred” mean? Or “threatening or abusive”? What is “likely” to stir up hatred? And the key question raised by these ambiguities: who decides?

Whilst the English legislation already contains a concept of “threatening” it did not include the subjective and ambiguous “abusive” and why go beyond the English “intent” to stir up hatred (which is itself a challenging judgement call) and add in the ambiguous, subjective “likelihood” of hatred being stirred up?

The confusion the Bill creates may well have the opposite effect to its intended purpose – acquittals not convictions. 

Mr Yousaf further claims this Bill is about ‘sending a message’ that offences motivated by prejudice will not be tolerated. I’d argue that that’s covered by the aggravators in part 1. 

Using criminal law to ‘send a message’ is a low threshold indeed of criminality. Some may wonder if that should be the purpose of the criminal law, and this Bill could arguably criminalise individuals who unwittingly step the wrong side of the line, with no previous instances of similar activity or any criminality.

One wonders whether this places a potentially enormous burden on the police, on top of everything else, to dedicate great amounts of time scrolling through Twitter investigating potential culprits. And there’s no telling how many complaints they may have to deal with, as a result of the vague wording of the Bill. 

The great Scottish Law Lord, Lord Reid, in the 1960s insisted that laws be clear, certain, and capable of enforcement.  The SNP’s new Hate Crimes Bill fails all three simple tests. Hopefully post-consultation the justice secretary will be open minded enough to think twice before proceeding.

Liam Kerr is Shadow Cabinet Secretary for Justice and a North East MSP for the Scottish Conservative and Unionist Party.


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