NICKY MARR: New Scottish hate crime law is well-intentioned but flawed
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‘Sticks and stones may break your bones, but words can never harm you.’
That sing-song phrase was repeated to us on a regular basis as kids, both at home and in school.
Its purpose, I guess, was to toughen us up, and to boost our resilience. The overarching expectation, then as now, was that we would treat each other mainly with decency and respect. But there was also a realisation that kids would fall in and out of friendships, and at some point, we’d likely be on the receiving end of some pretty nasty words.
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‘Rise above it,’ we were told. So we dried our tears, and we rose above it. It didn’t always work out, but within a matter of days sworn enemies could be as thick as thieves again and using each other’s jumpers as goalposts.
These were the mid-’70s. We had freedoms beyond what our own kids experienced; parents didn’t have a clue about half of what we got up to, or half of what we endured. And in the same way as we navigated scrapes and dangerous playgrounds – quarries, harbours, and building sites – we were left to navigate some tricky exchanges too.
Then, playground bullying was confined to the playground – no phones meant it couldn’t carry on into evenings or weekends.
But bullying back then also went largely unchecked. Today, we understand the real and lasting impact that harsh and cruel words can have. Unfortunately that realisation hasn’t done much to make us any kinder to each other. I live in hope.
Messy, hurtful, and unregulated as it all was, what we experienced in our playgrounds was unfettered freedom of expression and speech. On Monday those freedoms were eroded, with the enactment of Scotland’s controversial Hate Crime and Public Order Act 2021.
Three years in the making, this new legislation is undeniably well-intentioned, aiming to protect Scotland’s people against the “stirring of hatred” towards some vulnerable groups.
The change in law means that it is now a crime to stir hatred against people based on age, disability, faith, sexual orientation, transgender identity, or being intersex. Race and ethnicity were legislated for in the 1980s, and gender is missing too. Apparently, we women will have to wait a little longer for protection. There’s a new anti-misogyny law coming along for us, just not yet.
It sounds fair enough, doesn’t it? But scratch the surface a little, and there are problems.
For legislation to be effective it has to be enforced. The Scottish Police Federation have called it a ‘recipe for disaster’, mainly due to a lack of training for officers.
How does the legislation define ‘stirring up hatred’? Astonishingly, it includes words or behaviour that are ‘threatening, abusive, or insulting’. Insulting. If someone calls me old, and ‘a reasonable person’ would consider that to be insulting, can I now report them to the police? Apparently so.
Crucially, there doesn’t need to be any intention to insult for a crime to be committed. If the victim feels insulted, and the police and fiscal service agree that the remark was likely to offend, it could mean a loss of liberty for up to seven years.
Anyone else thinking of Orwell’s 1984?
None of us should be inciting hatred, whether based on race, gender, age, sexual orientation, favourite football team, political views, eye colour, or anything else. That’s a given. But this new law is nonsense. Where is the place in our society now for debate and disagreement? For robust exchanges of ideas? For comedy and satire?
As I write, we’re still on day one of the new law. The Scottish Government claims that free speech will be unaffected, but how that will sit with the changes is unclear.
I’m not in any way advocating a lawless free-for-all, or even a return to the robust playgrounds of the ‘70s. But there must be a better way to influence societal kindness than this.
