The Hate Crime and Public Order (Scotland) Act 2021
What does it do?
The Hate Crime and Public Order (Scotland) Act 2021, which comes into force on 1 April 2024, is attracting a great deal of controversy, but what does it do? For the most part, it is a consolidation exercise, bringing together hate crime legislation scattered across different statutes into one single place. But it does make several changes, discussed below.1
Why was the Act passed? In 2017, the judge Lord Bracadale was commissioned to conduct an independent review of hate crime legislation in Scotland; the Act is based on his recommendations.2 That came following a 2016 recommendation that the area be reviewed.3 There was also a particular controversy in the background, which was the Offensive Behaviour at Football and Threatening Communications Act 2012.4
What about that Act? The 2012 Act was, in its time, a highly controversial piece of legislation; the first Bill ever to go through Holyrood with no cross-party support (when the SNP had a majority by themselves). Lord Bracadale’s review gave the Scottish Government some breathing space on the controversy surrounding the Act, as it was included within the scope of his review. But while the review was in progress, a Labour MSP introduced a Member’s Bill to repeal the 2012 Act, which passed (the SNP were at this point a minority government) and Lord Bracadale did not recommend it be replaced. That particular controversy therefore dissipated. New ones have arisen.
So what changes does the new Act make? Hate crime law has two distinct strands, and the answer varies depending on whether you are looking at “aggravations” or offences of “stirring up” hatred.
Taking aggravations first of all: these are not crimes in their own right. “Aggravations” mean that where a person does something which is a crime in its own right (e.g. they commit an assault) and in doing so they demonstrate or are motivated by “malice and ill-will” towards a protected characteristic, such as race, the offence can be labelled as “aggravated” by that fact, which will be taken into account in sentencing. This area of law dates back to 1998, when it was first introduced for racially aggravated offending. Over time, religion, disability, sexual orientation and transgender identity have been similarly protected. The 2021 Act adds age to that list of protected characteristics.5
The stirring up offences. There has been a statutory offence of incitement to racial hatred since 1965. The 2021 Act will create parallel offences of stirring up hatred against a group defined by reference to a longer list of protected characteristics (age; disability; religion; sexual orientation; transgender identity; variations in sex characteristics). These offences are narrower than the racial hatred one. The main difference is this. A person can be convicted of stirring up racial hatred if they intend to stir up hatred or “a reasonable person would consider the behaviour or the communication of the material to be likely to result in hatred being stirred up” (section 4(1)(b)). For the other protected characteristics, an intention to stir up hatred must be proven: the fact that the stirring up of hatred is likely is not enough. (This is despite the fact that the racial hatred offence was extended beyond intention in 1976 because it was thought that the requirement of intention made it “useless to a policeman on the street”.)6
It is the stirring up offences which seem to be causing most controversy. This is particularly true in respect of the inclusion of transgender identity. Notably, when England and Wales created a stirring up offence in relation to religion in 2006, that caused considerable concern about freedom of speech. That has been far less pronounced in debates around the Scottish Act, perhaps because the equivalent offence has existed south of the Border for so long now (the 2021 Act also includes specific free speech protection in section 9). But controversy surrounding gender identity is particularly acute in Scotland at present, especially with the UK Government having blocked Holyrood’s Gender Recognition (Reform) (Scotland) Bill.
Does this mean there is likely to be a wave of prosecutions for stirring up hatred in respect of transgender identity? Despite the febrile state of social media discourse, no. There are few prosecutions for stirring up racial hatred (Lord Bracadale noted nine in the course of a decade) and it should be remembered that the racial hatred offence is easier to prove because it does not require intent, unlike the new stirring up offences. In 2014 the Law Commission recommended against creating stirring up offences in England and Wales in relation to transgender identity and disability, suggesting there would be very few successful prosecutions and so “the deterrent and communicative effects of the new offences would be very limited indeed”.7 That is not a knock-down argument against legislation, particularly when the question is not whether or not to have an offence, but which characteristics the offence should protect. Given that, it is not surprising that the Scottish legislation takes a different approach, but that does not mean the new law is likely to result in many prosecutions.
It's important to remember that “stirring up hatred” is a very high threshold. Lord Bracadale gave a series of examples of prosecutions for stirring up racial hatred in his report (para 5.12), noting that such offences “attack the group generally rather than individual members of the group”. His examples included people posting materials online calling for members of particular racial groups to be killed or injured. The offence does not cover people being rude – even vile – to other people on social media. (It does not, for example, make misgendering a crime.) And where conduct on social media goes beyond the pale, police and prosecutors already have long-standing tools at their disposal which are easier to use. There is, for example, a statutory offence of sending a “grossly obscene” or “indecent, obscene or menacing” message via a public electronic communications network,8 and a general offence of “threatening or abusive behaviour”.9 These already existing offences are significantly easier to prosecute than stirring up hatred.
Two important controversies: sex and policing. The text above focuses on what the letter of the law does. In order to keep this a (relatively) concise explainer of those points, I haven’t discussed two other important issues. One of these is police practice in relation to the Act, where there has been a lot of news coverage about Police Scotland’s public statements and policy commitments. The second is the exclusion of sex as a protected characteristic. Here the Scottish Government has chosen to take a standalone approach, having commissioned a report on misogyny and criminal justice by Baroness Helena Kennedy KC, and has committed to bringing forward legislation later this year.10 There is a useful discussion of the difficulties of including sex as a protected characteristic in hate crime law in this 2021 report by the Law Commission (pages 13-16).11 The Commission recommended that sex not be added to the list of protected characteristics for the English equivalent of Scotland’s system of aggravations, but that there should be a stirring up offence in respect of sex. The 2021 Act includes (in section 12) a power for the Scottish Ministers to add sex as a protected characteristic in the Act (either for aggravations or stirring up or both), and it would be surprising if the Scottish Government did not return to this issue alongside its forthcoming legislation.
I set up this Substack a long time ago and haven’t yet used it, so I thought I’d start with something uncontroversial.
I was a member of the Reference Group for that review; I also (with my colleague Fiona Leverick) co-authored a report on hate crime law in other countries which informed the Review’s recommendations.
See M McBride, “The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012: assessing the case for repeal” (2017) 21 Edin LR 234.
It also separates out “variations in sex characteristics” as a protected characteristic in its own right. Under the prior law, “intersexuality” was included within the definition of “transgender identity”.
Lord Scarman, in his report on The Red Lion Disorders of 15 June 1974 (Cmnd 5919: 1975) para 125.
Law Commission, Hate Crime: Should the Current Offences be Extended? (Law Com No 348, 2014) para 7.178.
In the current Programme for Government: “Bring forward legislation to criminalise misogynistic conduct as informed by the public consultation on Baroness Helena Kennedy KC’s report.”
Strictly speaking this is just a summary of the Commission’s report: there is a much longer discussion in ch 5 of Hate Crime Laws: Final Report (Law Com No 402, 2021).