How to fail at writing laws, a guide by the SNP

How to fail at writing laws, a guide by the SNP

New legislation to deal with hate crime – including “stirring up” hatred – has been introduced to the Scottish Parliament. Scotland’s Justice Secretary Humza Yousaf described the new bill as “an important milestone” in protecting victims. He said: “By creating robust laws for the justice system, Parliament will send a strong message to victims, perpetrators, communities and to wider society that offences motivated by prejudice will be treated seriously and will not be tolerated. Stirring up of hatred can contribute to a social atmosphere in which discrimination is accepted as normal.”

As is usual, the bill is motivated by the need to “send a message”. The Justice Secretary should be advised that there exist many excellent tools for sending messages – there is email, Facebook, Twitter and many more! Craving for attention is fine but should not result in new laws.

The list of problems with so-called hate crime legislation is very long and its effects on free speech are well-known: https://scottishlibertarians.com/frog-boiling-and-free-speech/

If we are ever going to have discussions as adults about controversial topics, there is always a risk of offending someone.

If we are going to be allowed to make jokes about anything, there is always a risk of offending someone.

If we have any disagreement with someone at all, there is always a risk of offending someone.

If that someone is from (or presumed from, or associated with somehow…) an always-growing list of protected minorities, any but the most pleasant and neutral interaction with that person can end up with a police investigation. How is that going to affect relations between people, one wonders?

And let’s not forget even the original consultation has clearly failed to convince Scottish citizens that this legislation is needed – a view the Scottish Government was happy to ignore.

Robust lawmaking

But even if you are convinced that “something must be done”, the proposed bill fails on its own merits.

This new “robust” law will have the following features:

  • it requires mind-reading powers from the court (“the offender evinces malice and ill-will towards the victim based on the victim’s membership of a group defined by reference to a listed characteristic, or the offence is motivated (wholly or partly) by malice and ill-will towards any such group.”)
  • the victim doesn’t have to be part of the group, it can have “presumed membership”, where presumed membership means presumed by the offender. More mind-reading is required.
  • it creates nebulous offences of “stirring up hatred” and “possessing inflammatory material”. Since it’s hard enough to prove an intention to stir up hatred, the bill simply adds “…or it is likely that hatred would be stirred up.” leading to even more speculation.
  • the police will be able to get a warrant to search your premises if there are reasonable grounds to suspect you have something which is likely to stir up hatred somehow in some way.
  • if anything is found the burden to prove your innocence is on you, the legal burden of disproving the defence and proving that the offence has been committed remains with the prosecution.
  • the bill confirms that these horrible crimes don’t have to have any actual victim. (“There does not require to be a specific victim of an offence for this aggravation to apply.”) Whosoever shall utter bad words shall be put into stocks and stoned – the police will decide whether your words are bad enough to investigate you and the court will decide whether your words are bad enough to sentence you. And it doesn’t have to be your own words – anything you own can be used against you. We should probably start burning old books just to be on the safe side!
  • the law kindly enough abolishes the old offence of blasphemy while it introduces these new blasphemy offences, details yet to be worked out.
  • “corroboration is not required to prove that an offence was aggravated by prejudice. Corroboration will still be required
    for the purposes of proving the underlying offence.” In other words, a minor offence could be always made worse with unsubstantiated accusations.
  • Finally, let’s enjoy this beauty: “The effect of an aggravation being proven is, by virtue of section 2(2)(c), that the court must take the aggravation into account in determining the appropriate sentence. This does not mean in itself that a sentence should be more severe than it otherwise would have been, but it does ensure the court will need to consider as a relevant sentencing factor that an offence has been aggravated by prejudice.” While the court has to explain its reasoning for a sentence, this section means that a court can completely ignore this entire piece of nonsense.

Robust, eh?

Failing again

The current bill is on its way to join other SNP-sponsored pieces of legislation. The Scotland’s Offensive Behaviour at Football Act was similarly vague nonsense and failed to do anything about its intended purpose. And of course the police and courts had all the necessary powers all along.

The Named Person law was also inspired by “good intentions” and is now quietly dying.

The Hate Crime and Public Order (Scotland) Bill is a vague mess that is worse than useless. It is likely to have a chilling effect on free speech and woe to any comedian who dares now to be controversial. Activist judges can rejoice in getting more power while the justice system will be tied up in more nonsense.

The only good thing here is that the Scottish Government has clearly nothing better to do than to create defective laws. It’s not like there is a pandemic imprisoning us in our homes and an economic collapse behind the door.

Peter Sidor is Membership Secretary of the Scottish Libertarian Party and recipient of the party’s Lion of Liberty Award 2019. In the few spare moments not spent on party business he is attending to his family and his job.

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