Scotland’s new hate crime law

In 1697, Thomas Aikenhead became the last man to be hanged in Scotland for breaking blasphemy laws. He was a student at Edinburgh University and only 20 years old. His crime was to criticise Christianity. Edinburgh tour guides tell tourists that, while walking home inebriated one very cold evening he told his friends he wished he was in hell where at least he’d be warm. Part of his indictment read, “That … the prisoner had repeatedly maintained, in conversation, that theology was a rhapsody of ill-invented nonsense, patched up partly of the moral doctrines of philosophers, and partly of poetical fictions and extravagant chimeras: That he ridiculed the holy scriptures, calling the Old Testament Ezra‘s fables, in profane allusion to Esop‘s Fables;” On the morning of his death he wrote, “it is a principle innate and co-natural to every man to have an insatiable inclination to the truth, and to seek for it as for hid treasure.” Blasphemy remained an offence punishable by death in Scotland until 1825.

All of us in this country are now free to criticise, insult, and ridicule all religions as much as we like without fear of death or punishment under the law. Many people around the world have no such freedom. They live in countries where blasphemy is still punishable by death. We should never take this freedom for granted even if we have no desire to criticise religion ourselves for if we allow others to lose this right it establishes a precedent that will reach back to us on a topic we do wish to talk about. Thomas Paine, the English philosopher, wrote in 1795, “He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”

I write this now because Scotland is about to introduce a new hate crime law that makes it a crime for stirring up hatred against any of the following groups:

Disability
Race
Religion
Sexual orientation
Transgender identity

There is specific provision in the new law to allow “expressions of antipathy, dislike, ridicule or insult towards” religion and religious belief but not for the other groups. There’s also no mention of protections for sex despite the recognised pandemic of violence against women and girls. To be fair to the Scottish government they say they plan to add sex at a later date but given the seriousness and urgency of the issue now one wonders why they haven’t included it at the outset. Deeds not words as the suffragettes used to say.

The Scottish government promised to consult with concerned stakeholders during the passage of this bill. One of those stakeholders was the Edinburgh-based policy analysis collective – Murray Blackburn Mackenzie – but the promise was not honoured despite repeated attempts by the group to engage with the Scottish government. Murray Blackburn Mackenzie have published all their correspondence at the bottom of this letter from 10th March 2024. Lucy Hunter Blackburn was on BBC2 this week discussing the issue.

It’s unclear what people can and can’t say when the new law takes effect and what will be prosecuted. Can a devout Christian say they believe marriage to be between a man and a woman? Can a feminist say lesbians don’t have a penis? The police have said they will investigate every report so there is a legitimate fear they will be inundated with incidents although I suspect prosecutions will be low. However, if you are reported for saying something that is not prosecuted it will still be recorded as a non-crime hate incident.

Whether a crime has been committed or not will require a test of malice and ill-will where the “offender demonstrates malice and ill-will towards the victim” or their membership of a specific group. Those expressing concerns with the law say this will be a case of victim perception. The problem with this is some people in our society view mere disagreement as hateful and abusive. A lively discussion with colleagues in a pub after work could be reported to the police just as Thomas Aikenhead was reported for his drunken rant. The law will almost certainly have an impact on free expression. It comes into effect on April 1st 2024.