Scotland’s hate crime law explained as new rule now in force

Scotland’s new hate crime law goes into effect today.

Most of what the Hate Crime and Public Order (Scotland) Act 2021 includes isn’t new, however.

For the most part, it bundles together other hate crime rules into one package – but one particular policy, an offence for ‘stirring up’ hatred, has proved controversial.

Here’s everything you need to know.

What is Scotland’s new hate crime law?

‘The New Hate Crime Act that comes into effect as of today does not change a huge deal from what has already been in practice within the legislation for a considerable amount of time,’ Dr Rebecca Crowther, the chief executive office of the Scottish LGBTQ+ group Equality Network, tells Metro.co.uk.

‘Though the changes there are positive and will mean a lot to the communities affected.’

The act, which Holyrood passed three years ago, beefs up a 2010 law for ‘statutory aggravation’. This is when a criminal offence is committed and part of the motive is prejudice on certain grounds, so the offence is ‘aggravated’ by that prejudice.

‘People with variations in sex characteristics,’ such as intersex people, says Dr Crowther, ‘will be appropriately covered by the legislation for the first time.

‘Age has been added as a characteristic to be covered under the law.’

This helps police better catalogue the offence as a type of hate crime and also helps the courts take it into account when sentencing.

But the main talking point of the bill is the new ‘stirring up hatred’ offence, says Dr Crowther, which she has seen a lot of ‘misinformation’ around.

‘Stirring up’ means behaviour from someone that ‘that a reasonable person would consider to be threatening or abusive’ to incite hatred, the law states.

Stirring up racial hatred has been in the books since 1986 but MSPs branched the definition out to also cover: age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics.

As Equality Network puts it: ‘For example, if someone shouts threats at you in the street, using transphobic language, and putting you in a state of fear or alarm, that is likely to be a transphobic hate crime.

The maximum penalty is a prison sentence of seven years.

The act states that freedom of expression must be considered when deciding if behaviour is ‘reasonable’. It also uses the definition of the right laid out in Article 10 of the European Convention on Human Rights, which includes protection for ‘ideas that offend, shock or disturb’.

Equality Network adds: ‘If someone misgenders you on social media, that would not of itself be a crime. That’s because misgendering someone remotely would not of itself be provably both likely to, and intended to, put a reasonable person in a state of fear or alarm.’

When is Scotland’s new hate crime law in effect?

From today (April 1).

Why is Scotland’s new hate crime law controversial and what do critics say?

Critics of the law, including JK Rowling, X owner Elon Musk and podcaster Joe Rogan, have said this ‘ludicrous’ law, as the Harry Potter author put it, curbs free speech.

Some opponents have focused on not being able to express ‘gender critical’ views, which are beliefs largely against trans rights, in private and online.

SNP MP Joanna Cheery has claimed the ‘wide’ law will ‘silence, and worse still, criminalise women’.

LGBTQ+ groups have largely welcomed the law, however, given that hate crimes against the community in Scotland have doubled in the last 10 years, according to official figures. Between April 2022 and March 2023, there were 1,884 hate crime charges concerning sexual orientation and 55 transphobic hate crimes.

Peter Tatchell, an LGBTQ+ rights activist, says he does not doubt that the ‘well-intentioned’ hate crime act will protect countless Scottish people.

‘But I fear that some aspects of it – words like “hate”, “malice” and “ill will” – are not defined and could be open to harsher than justified interpretation,’ he says.

Tatchell adds: ‘There is an anxiety that, like other legislation of this nature of the past, it could have unintended consequences.’

The director of the Peter Tatchell Foundation says he knows a thing or two about vague words. ‘I’ve been arrested many times over behaviour likely to cause “harassment”, “alarm” or “distress”,’ he says.

‘In one incident, I merely held up a plaque calling for gay law reform… That shows how the law can be widely interpreted to restrict free speech.However, this legislation does say that discussion or criticism is not a grounds for criminalization.’

Vic Valentine, a manager for the charity Scottish Trans, says the law isn’t anything to worry about.

‘There is a big gap, as there absolutely should be, between things people say that we find upsetting, offensive – transphobic, even – and things that are criminal,’ they wrote in a column for The Scotsman.

‘The law should only interfere with people’s freedom of speech and expression with really good reason – and I think that the high threshold for this offence gets that right.’

Others have pointed out that, in the list of characteristics the act protects, one is missing: sex. This could leave women unprotected, they say.

Engender, a Scottish feminist policy group, told Holyrood that given how pervasive misogyny is, a dedicated law to tackling gender-based violence against women is needed. Simply including ‘sex’ in the hate crime act doesn’t go far enough, the group said.

‘Adding an aggravation offers no new protection where the law is not already designed or implemented to protect women and girls from harassment, harm or misogyny,’ Engender said.

The Scottish government has launched a study, chaired by Helena Kennedy KC, to look into anti-misogyny laws.

What other hate crime laws does Scotland have in place?

A heap of them, which is why politicians and campaigners felt new legislation was needed to streamline them.

For Dr Crowther, the bill’s journey has been a long one. One not helped by press coverage and people who have elbowed themselves into the conversation to ‘spread misinformation’ and ‘ultimately ridicule hate crime’.

‘I wish that all of this talk in the media over the past few weeks and today, in the lead-up to the coming into effect of the act, would have focused on the reality of hate crime,’ she says.

‘That it is rising, that it deeply affects marginalized communities, that it causes deep-rooted fear in communities, pain, poor mental health, isolation and that legislating to protect people from these harms is a good thing. 

‘Hate crime is serious, it ruins lives and communities. Hate crime is on the rise in Scotland and we want to see an end to it.’

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