Three and a half years ago, the ASI published a position paper and draft law proposing a “UK Free Speech Act” which would, if enacted, forever remove the regulation of nonviolent political discussion from the remit of law enforcement in the United Kingdom.
The censorship provisions of the Hate Crime and Public Order (Scotland) Act 2021 (the "Hate Crime Act"), entering into force this week, are deeply offensive to freedom of expression, and the only way to stop them is to implicitly repeal these new rules with UK-wide protection for freedom of speech.
The Hate Crime Act contains three provisions in particular – “aggravation of offences by prejudice,” “racially aggravated harassment” and “stirring up hatred” – which are, at least as-described, descriptions of the sort of speech that most members of polite society would rightly oppose as a personal, moral matter.
However, if we look at the substance of the language employed by the new laws and its derivation from similar, viewpoint-neutral English rules – in the case of the stirring-up offence and the “racially aggravated harassment” offences, the “alarm or distress” language from the English Public Order Act 1986, and in the case of the stirring-up offence only, the historic “threatening, abusive, or insulting” language from that same law – we know that these rules have proven capable of extremely overbroad application in England, and these new rules will prove just as terrible, if not more so, if allowed to stand in Scotland.
The position, outlined in a 2020 paper for the ASI, and the applicable English legal rules, remains entirely unchanged. It suffices for present purposes to note that existing English laws, which are nowhere near as intrusive as the new Scottish ones, have already been used in England to, variously:
· threaten a schoolboy with prosecution for nonviolently holding up a sign calling the Church of Scientology a dangerous cult;
· arrest republican protestors in the vicinity of King Charles' coronation for nonviolent picketing;
· convict a protestor for nonviolently saying David Cameron had “blood on his hands” for cutting disability benefit at an event where the then-PM was speaking;
· convict protestors against the war in Iraq for nonviolently expressing their points of view in front of soldiers of the British Army returning home from that war;
· arrest students for nonviolently saying “woof” to a dog;
· arrest a woman for nonviolently praying silently; and
· arrest a preacher for nonviolently reading from the Bible, in public, verbatim.
The existing rules should have been repealed years ago, but few UK lawyers, being unaccustomed to an American perspective on free speech jurisprudence and thus unable to see that the frog was starting to boil, seemed to notice very much as the English judiciary lost its way after issuing its landmark, pro-free speech decision of Redmond-Bate [1999] EWHC Admin 733. In a few short years, the English courts went from protecting controversial speech to routinely acquiescing to the criminalization of what, pre-1999 at least, would have been entirely lawful, if somewhat controversial, expression (see: Norwood v DPP [2003] EWHC 1564, and Abdul v. DPP [2011] EWHC 247).
The provisions of Article 10 of the European Convention concerning freedom of expression, enshrined in domestic law by the UK Human Rights Act, are little better than window-dressing. They have been of no assistance whatsoever in protecting English speakers of controversial ideas since that law's enactment; indeed, the Human Rights Act may have harmed the cause of free speech in the country by formalising the broad derogations from that right permitted under Article 10(2) which have been abused, time and again, to stifle discourse.
Put another way, our experience with the English rules, in particular the Public Order Act 1986 but also the Malicious Communications Act 1988, and Section 127 of the Communications Act 2003, is that their application, especially in the last 25 years, has been subjective, unpredictable, inconsistent, politically-motivated, sometimes capricious, and thoroughly chilling to speech.
The Scottish law turbocharges all of these problems by abandoning viewpoint-neutrality and expressly targeting “culture war” issues around questions of identity within the four corners of the statute. This is particularly the case when we look at the “aggravation of offences by prejudice” law, which states that age, disability, national or ethnic origin, sexual orientation, and transgender identity are all to be considered when sentencing people in Scotland for criminal offences.
The problem with this, of course, is that merely talking about these issues and causing offence is already capable of constituting a public order offence, both in England and substantially equivalent legislation in Scotland, and these provisions were used in both England and Scotland to suppress speech even before the Hate Crime Act entered into force.
Only last month transgender activists sought to have J.K. Rowling arrested there after English prosecutors declined to prosecute her for prior “gender critical” remarks. The Hate Crime Act now requires Scottish judges to take into account Rowling’s motivations when judging her speech, which we think would be fairly described as emanating from the identitarian, and therefore definitionally “prejudicial,” ideology known as second-wave feminism, and would require, in a public order or malicious communications-based prosecution for those feminist remarks, for a Scottish judge to consider a sentencing enhancement.
It makes no sense to criminalise these conversations. Indeed it makes sense to expressly legalise them, given that national politics seems, increasingly, to cluster around identity issues and, in a democratic society, require their open discussion in order for these disputes around the proper ordering of society to be satisfactorily resolved.
On the gender theory question, in particular, the debate seems to be between, on one side, critical theory-informed intersectional activists who seek to view all power relationships through the lens of what they call immutable characteristics, and on the other, we see a coalition of classical liberals and religiously-minded traditionalists from the usual suspects like the Catholic Church but also newly aggrieved groups such as traditionalist Muslim parents of schoolchildren. As the fact that the Prime Minister himself felt the need to chime in on these matters this week plainly evidences, identity issues, whether we like it or not, now sit squarely at the centre of contemporary UK political discourse.
We take no view on the merits of either "side" here, because taking a viewpoint does not matter and, in any case, is inadvisable, to the extent anyone here at the Institute plans on ever setting foot in Scotland again. This is because it is now quite unsafe, legally speaking, to take a vigorously-defended public position on these questions in Scotland from any perspective, as long as there is a hearer who is offended enough to file a police report against the hearer's perceived political enemies, or calculating enough to pretend to be so offended.
To see how the Hate Crime Act potentially cuts in all directions, we need look no further than criminal complaints which have already been made under the new law. See, for example, the fact that Scottish First Minister Humza Yousaf, the law's primary advocate and promoter, was immediately reported by the Indian Council of Scotland to the police for thoughtcrime contained in a speech he himself delivered in Scottish Parliament in 2023 as soon as the Hate Crime Act entered into force. Under the new regime, even the First Minister will need to take care not to express those same thoughts in the same manner again.
There are not many reasonable people who wish to live in a country where the first response to any political disagreement is to call for a speaker's arrest. Nonviolent speech should never warrant a violent response. Yet, as was proven on day 1 of this new law, we already see that the Scottish law will be used, and is being used, to call down state-sanctioned violence, namely arrests and imprisonment, to suppress broad swathes of viewpoints from all political quarters.
To the few back-benchers who are engaged by this pertinent issue: This is the hill to die on. Rishi Sunak, the Prime Minister, has said he opposes the Scottish law.
Push the Prime Minister to back up that opposition with decisive action. Permanently abolish political censorship enforced at gunpoint. Enact the UK Free Speech Act.