The Hate Crime and Public Order (Scotland) Bill passed by a wide margin on Thursday – 82-32 with 4 abstentions – after MSPs debated several amendments through Wednesday.
The legislation consolidates law already on the books. It also applies “stirring up hatred” – itself a relatively new offence that heretofore applied only to race – as an aggravating factor in offences motivated by prejudice with regard to disability, religion, sexual orientation, transgender identity (or variations in sex characteristics), and age.
The law also takes the offence of blasphemy off the books, though no one in Scotland has faced prosecution for that crime in nearly 200 years.
Opponents considered the new “stirring up hatred” offence too broadly defined and tending to curb free speech.
Religious and cultural advocacy groups criticised the bill on those and similar grounds, as did journalists, police, and even the Law Society of Scotland. Several amendments made it into the version of the law that passed, which were designed to raise the threshold of prosecution.
The Catholic bishops of Scotland had been among those urging changes to the legislation.
Through their Catholic Parliamentary Office, they noted in February: “We have argued from the beginning for a strong freedom of expression clause in relation to religion, religious beliefs and practices, and the position of not holding religious beliefs,” expressing some relief that the legislation had taken some account of those concerns.
“However,” the CPO continued, “we remain deeply concerned at the lack of similarly strong terms for the protected characteristics of sexual orientation and transgender identity,” saying that none of the language options then on the table adequately addressed their concerns in these regards.
“The beliefs which underpin these characteristics raise moral questions that are hotly disputed in a way similar to religion,” the Bihsops said. “[F]ree and open debate must be allowed as must the right to disagree.”
The Scottish bishops were especially concerned that there be “no threat of prosecution” for holding or saying only two sexes or genders, or that a man cannot become a woman and vice versa, or that marriage can only be between one man and one woman.
“Further,” the bishops said, “nobody ought to be criminalized for using a person’s birth name or pronoun.”
Scottish Justice Secretary Humza Yousaf addressed himself to those and other concerns in comments on the legislation as passed. He offered a host of examples ranging from belief in the immutability of sex or that an adult man cannot become a woman, to advocacy for the rights of Palestinians and preaching the sinfulness of same-sex relationships. “To those who think they may accidentally somehow fall foul of the law,” he said, “None of these people would fall foul of the stirring up of hatred offence for solely stating their belief,” Yousaf said, “even if they did so in a robust manner.”
He went on to explain: “Solely stating any belief, which I accept may be offensive to some, is not breaching the criminal threshold.”
Yousaf said he was “delighted” at the outcome, and described the new law as “fitting for the Scotland we live in.”
Opponents and critics find that cold comfort, at best.
Scottish Conservative justice spokesman Liam Kerr cited “inherent ambiguity” in the law’s language, and claimed it fails to “balance” free expression and protection from hate.
Other critics, like former Labour leader Johann Lamont MSP (Glasgow) would have seen specific and explicit protections for women introduced to the law.
Other lawmakers voted for the bill despite reservations about its omission of mention of women, and other concerns.