Debunking the myths: the Public Order Act explained
by No doubt you are aware of the attention the Hate Crime and Public Order (Scotland) Act has been receiving recently and there has been quite a lot of misrepresentation.
Firstly, the Scottish Parliament passed this Act in 2021, and that included all parties except the Tories, who we know are happy to tolerate hate speech from their own members whilst also pushing for laws that restrict protest.
We should never underestimate the hypocrisy and lengths that opponents of independence will go to in order to undermine both the SNP and the Scottish Parliament as an institution.
So, this is far from being a law by ‘Humza’ or ‘the SNP’, no matter what headlines may say. In fact Anas Sarwar himself was very vocal in his support.
For the most part, the Act is simply consolidating existing hate crime legislation across different statutes into one single place.
For example, the “stirring up of hatred” provisions are not new. Stirring up of racial hatred has been on the statute books in Scotland since 1965.
The Act simply extends existing provisions to cover other protected characteristics.
Despite of the lazy claims, the truth is that for a prosecution to come forward it must first prove that someone has used “threatening or abusive” language or behaviour. Only for racial hatred is the word “insulting” included – meaning that for other groups language or behaviour must be more than merely insulting.
Secondly, and importantly, prosecutors must also prove that the accused “intended” to “stir up hatred”.
The Act also explicitly ensures protections for “freedom of expression”. Section 9 of the Act states “behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes discussion or criticism of matters” relating to the protected characteristics.
It’s important to mention that “stirring up hatred” is a very high threshold and the law does not penalise people being rude – or even vile – to other people on social media.
The Scottish Government is not overlooking sex and 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. Nevertheless the 2021 Act does include a Ministerial power to add sex as a protected characteristic in the Act should circumstances and time demand it.
People can be assured that the Act will not criminalise anyone who wishes to debate, discuss or criticise any matters in a non-threatening or abusive manner and there is no reason for anyone to self-censor because they fear they may be committing an offence. Specific legal protections were added to the legislation to strengthen freedom of expression rights.
If you would like to read more on what the Act really does there are good explanations by legal academics. For example, there is James Chalmers, Regius Professor of Law at University of Glasgow, here and Mark Walters, Professor of Criminal Law & Criminology at University of Sussex School of Law, here.