Comedians, sceptics and dissenters will be targeted by Scotland’s proposed “stirring up hatred” offence

11th May 2020

You might have missed it in all the recent excitement, but last month, Scotland introduced legislation to abolish its antiquated and rarely used blasphemy law.

That’s good news. Blasphemy laws are incompatible with freedom of belief and expression. We might describe blasphemy – politely – as “robust doctrinal disagreement”: and it is the reason that one might prefer one religion, one sect, or simply one way of understanding the world over another. For that reason, such laws are unworkable and anachronistic in any society which values pluralism, and accordingly does not impose and police the requirements a single, state religion.

The bad news is that Scotland seeks to replace the blasphemy law with a new offence of “stirring up religious hatred“.

We have been down this route before. Readers will remember that Rowan Atkinson emerged as a powerful advocate against the proposed English law offence of “incitement to religious hatred”, over fifteen years ago. As a result of the campaign, the wide scope of that proposed offence was narrowed in a manner which ensured that comedy and dissent was properly protected. As a result, section 29J of the Public Order Act 1986, as amended, provides a broad defence to a charge in relation to that offence:

Protection of freedom of expression: Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

This provision is not simply there to protect those who dislike religion in general. It is also valuable to those with highly conservative religious beliefs. There are few religions which do not evince a level of opposition to those of different confessional allegiances. The greatest hostility is typically reserved for persons who dissent in what – to an outsider – might appear a minor matter.

Let us now turn to the proposed Scottish provision. Clause 3(2) of the Bill criminalises a person who behaves in a threatening or abusive manner or communicates threatening or abusive material to another person, either intending to stir up hatred against a group of persons “based on the group being defined by reference to” a variety of characteristics, including “religion or, in the case of a social or cultural group, perceived religious affiliation”, or where, “as a result, it is likely that hatred will be stirred up against such a group”. That final clause removes the requirement of intention from the offence.

There is a defence, or carve out, from the scope of the offence, provided by clause 11(2) of the Bill:

Behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes—
(a) discussion or criticism of —
(i) religion, whether religions generally or a particular religion,
(ii) religious beliefs or practices,
(b) proselytising, or
(c) urging of persons to cease practising their religions.

That is a useful provision, as is the exclusion of “insult” from the scope of the offence: the conduct must be threatening or abusive, and not simply insulting. But by excluding the highlighted words in the parallel English law provision – expressions of antipathy, dislike, ridicule or abuse – the Scottish law will be considerably more expansive than English law.

A person may not intend to threaten or abuse: but a court may take the view that ridicule amounts to abuse or threat, and does not fall within discussion or criticism. In any event, should the law really be criminalising antipathy to religion or particular religious practices? How narrow is the line between anodyne criticism and prohibited dislike?

In particular, how will this law impact those who have converted from one religion, or one sect of a religion, to another? How will it affect individuals whose experience within particular religious communities has been so negative that they feel hatred of those who have imposed misery on them?

Will Frankie Boyle need to self censor?

Addressing hostility between religious groups is a vital issue for free and pluralist societies.  Campaigns of hatred against religious minorities, and against dissenters and “apostates” have been terrifying and, on occasion, fatal.

There are many other things that a society could, and should be doing to meet that challenge. Sectarianism can be tackled, head on, by political campaigning and education. Groups which actively promote hatred against religious minorities should be subject to a cordon sanitaire: so that their representatives are not feted and honoured. Most importantly, we can actively and positively promote freedom of belief, as a value which underpins our society.

However, the criminal law is a blunt instrument that is ill-suited to this particular task. It neither creates solidarity between religious minorities, nor encourages religious freedom. The Scottish Parliament needs to take a step back from this ill-conceived provision, and think again.