Why are Scotland’s new hate crime laws prompting concern?

New hate crime laws which came into force in Scotland on Monday are some of the most controversial legislation enacted by the Scottish Parliament in recent years.

– What exactly is the Hate Crime and Public Order (Scotland) Act and why was it introduced?

MSPs approved the legislation in March 2021 – just over three years ago. But the Bill had been introduced by the Scottish Government to consolidate hate crime powers, and to extend protections against stirring up hatred – which were already in place in terms of racial hatred – to other groups.

While an offence of stirring up racial hatred has been in place since 1986 the legislation extended similar protections to people on grounds including age, disability, religion, sexual orientation and transgender identity.

However it does not extend these protections to women, with the Scottish Government having pledged separate laws will be brought in to tackle misogyny.

The legislation was introduced by ministers after an independent review of existing hate crime laws, carried out by senior judge Lord Bracadale, recommended a Bill be introduced to revise and consolidate these.

– What exactly is hate crime?

Hate crimes are regarded as being motived by a hatred of part of someone’s identity – whether it be the colour of their skin, their relgion, sexual identity or disabilty.

When he carried out his review Lord Bracadale stated that those offences which are “motivated by hatred or prejudice towards particular features of the victim’s identity should be treated differently from ‘ordinary’ crimes”.

– Who voted for the Bill when it passed through Holyrood?

The Bill was passed by 82 votes to 32 when it was approved by MSPs. SNP and Green MSPs supported it, along with Labour and the Liberal Democrats – with the latter two parties backing it only after changes were made to the legislation.

However, the Scottish Conservatives made clear at the time they still believed it was “fundamentally flawed”, voting against the legislation.

– What are the concerns that exist about the legislation?

Concerns have been raised about the impact the Act could have on free speech – with critics including author JK Rowling, Elon Musk, the owner of X – formerly known as Twitter – and prominent SNP MP Joanna Cherry KC.

Police officers in Scotland – who will be responsible for enforcing the legislation – have also voiced concerns, with the Scottish Police Federation (SPF) claiming that training provided is not enough while the Association of Scottish Police Superintendents (ASPS) has raised fears about the legislation being weaponised for political purposes.

– What does the Scottish Government say about the legislation?

First Minister Humza Yousaf – who in a previous role as justice secretary spearheaded the legislation through the Scottish Parliament –  insisted that the Act has “got the right balance” between protections against hate crime and freedom of speech.

Mr Yousaf urged people not to use the new legislation to make vexatious complaints, saying these will be taken seriously by the police.

He has also claimed there is “disinformation” being spread about the Bill and what it entails, claiming there is a “triple lock” on protection for freedom of speech.

This includes an explicit clause on this in the legislation, a defence for the accused’s behaviour being “reasonable” and that the Act is compatible with the European Convention on Human Rights.