Orcadian Column, 11 April 2024

After a few days off, I began this week working remotely from the Graemsay ‘office’. Island ‘hopping’ remains one of the undiluted pleasures of representing Orkney, particularly when the wind drops and the sun comes out, as was the case on Monday.

I even completed my maiden voyage aboard the Nordic Sea, a vessel that enjoys notoriety locally after early misadventures on the route serving Papa Westray, an island I will be visiting later this week. In tricky conditions on Monday, though, the Nordic Sea’s crew coped admirably allowing me to spend the day making house calls, drinking tea and accumulating casework and gossip in almost equal measure.

With the pace of life so much different to elsewhere, time spent in the smaller isles is invariably balm for the soul. That’s not to say that strong opinions are not to be found on issues varying from the very local to the genuinely global.

Even so, the discussions in Graemsay could scarcely feel more removed from the ongoing outcry over the introduction of hate crime legislation, a debate that has been generating considerably more heat than light of late. The last rites for free speech have been declared by people who clearly haven’t stopped to read the legislation, preferring instead to take as gospel press reports of its allegedly dire consequences.

Admittedly, the Scottish Government must shoulder some blame. It has failed to clearly explain what the Act does and does not do and why, not least in the face of increasing levels of antisemitism and islamophobia, such legislation was felt necessary in the first instance. Moreover, some of the language used by Ministers, including successive First Ministers, to describe political opponents has hardly led by example in taking the hatred out of public discourse.

So respect is due to the former Tory MSP, Adam Tomkins who convened the Justice Committee during its scrutiny of the original Hate Crime Bill. As befits an expert in Public Law at Glasgow University and author of “On the Law of Speaking Freely”, Professor Tomkins has sought to inject some much-needed calm analysis into an increasingly febrile debate on this issue.

In his recent Herald article, Professor Tomkins explains that the Hate Crime Act extends the criminal offence of stirring-up hatred, which has applied to race since 1965, to other “protected characteristics”, namely religion, sexual orientation, transgender identity, age and disability. Importantly, though, while actions that are ‘likely’ to stir up racial hatred will still be criminal, the new offences will require actual intent to be proven.

In response to demands from Scottish Women’s Aid, Rape Crisis Scotland and Zero Tolerance for a standalone misogyny offence, which is currently being consulted on, ‘sex’ was not included as a protected characteristic in the bill. Unfortunately, that has left an important gap that Ministers must look to fill without delay.

So, it will now be an offence to behave in ways that a reasonable person would consider threatening or abusive if, in doing so, you intend to stir up hatred. The law also states, however, that “particular regard” must be had to the right to free speech, including the principle that that right protects communications which others may find “offensive, shocking or disturbing”.

Of course, the impact on police resources has been the subject of quite legitimate concern, although some of the reporting around this issue has not helped, encouraging even higher levels of complaints to be made. What also hasn’t helped is the fact that Police Scotland still record ‘non-crime hate incidents’, even where no charge or prosecution follows. Since 2022, this is no longer the case with forces in England and Wales, and it seems increasingly clear this is an approach Police Scotland should be looking to follow.

Over recent weeks, it has been fascinating to observe how much noise can be created by those insisting they are being silenced. I say this not to dismiss the potential risk of a so-called ‘chilling effect’, but as Professor Tomkins argues, “if we focus on what the Act actually means, rather than on what intemperate voices on both the left and the right are falsely claiming it means, we might yet make a success of it.”