Ash Regan MSP: Lessons Learned from the Hate Crime Public Order Act

The Chilling Effect occurs when the fear of police action in response to a perceived response stops a person from freely expressing a view they otherwise would not.

It's ‘cancel culture’ before you even dare speak or write.

We currently witness comedians, social commentators, and the public eviscerating Scotland's Hate Crime and Public Order Act 2021 across international, domestic, and social media. I want to clarify how we got here. It may seem bizarre to a passive consumer of politics that an Act that became law in April 2021 would generate more intense negative scrutiny now than it encountered while passing through the Scottish Parliament.

This Bill, introduced in April 2020 in the name of Humza Yousaf, on the Hate Crime and Public Order (Scotland) Bill, was passed on March 11th, 2021, and became an Act on April 23rd, 2021, in the final days of the fifth session of the Scottish Parliament just before the election on May 6th. I was the junior justice minister for Community Safety at the time. Legal experts like Thomas Leonard KC have made excellent contributions on what this new law does and doesn't do and what remains problematic.

I want to explain why the backlash has come now.

My first encounter with the legislation was its introduction as a modernisation and cleaning-up bill. The argument was sound: take offences that existed elsewhere for some protected characteristics, broaden the set, and tidy them up into one place to bring consistency in dealing with aggravated hate that was less complex to understand and more accessible to prosecute.

At the time, much debate focused on freedom of expression and speech - the bar was to be set high, and the value of allowing even quite offensive speech was to be protected by law.

The Act retains many of these safeguards to the credit of the legal and policy minds that contributed to the consultations.

During discussions on the Bill with now-current First Minister Humza Yousaf - I raised two core concerns: protection of vocal disagreement without fear of recrimination and misogyny. Colleagues assured me that the Bill would have clarity of intent built into the accompanying guidance, setting the bar for investigation and prosecution, clearly above legally protected freedom of expression.

I was asked for my view on whether we should include sex as a characteristic, to protect women from misogyny, and I said yes. I was told that feedback from women's rights organisations sought a separate offence in misogyny legislation that could assist in dealing with the specific considerations in domestic abuse law. By then, I'd been a minister for two years, and consultations and contributions were omnipresent.

Women's rights were not yet as evidently in conflict in Scotland as they are now. Still, I was aware of issues raised by women groups more vocally from around 2018, so I took assurances that these contributions, positioned as representative of women's views, were from an informed position.

Before the vote, along with policy groups like Murray Blackburn MacKenzie, I again received assurance that the promised clear explanatory notes to provide essential intent through real-world examples would be available for review by the Justice Committee to ensure they were robust accompaniments to the Act - before its implementation.

Subsequently, the Parliament passed the legislation, and the Bill became an Act. After passing this Act, the follow-up meeting to discuss the guidance was a singular event that shaped my future political career. At that meeting, ministers decided that they would not add clarifying real-world scenarios involving gender-critical feminists as there was nothing to gain, and it would upset the trans lobby.

Upon my return to Holyrood following my re-election to the Scottish Parliamentary in May 2021, the guidance still needed to be created.

From speaking widely to women's groups who had made significant contributions to the Justice Committee, I knew that my government had broken promises to consult with them regarding clear guidance and additional protections for women in the proposed Misogyny Bill. Indeed, many had also wanted sex to be included in this Bill, as I had first assumed, but my then-boss had convinced me that my view wasn't representative.

The whole situation seemed bizarre. As I tried to make sense of it, I questioned whether this was incompetence in the legislative process or whether my then-party leadership had deliberately misled me and others to enable the Bill to pass through Parliament seamlessly. At this point, I decided to skip being briefed and do the detailed work myself.

As history shows, it wasn't long before my next set of concerns over the Gender Recognition Reform (GRR) Bill ultimately led me to leave my ministerial office. Campaign groups and parliamentary colleagues who shared my concerns and I took some comfort from the prolonged delay in the 2021 Act ascending from the legislative shelf to implementation in law and had hoped that the promised clear guidance and Misogyny Bill would be developed in time to create clear, comprehensive, and consistent legislation that had been the purpose of the Bill proposed to us in early 2020.

Along with campaign groups and colleagues, I focused my efforts on ensuring that our concerns surrounding the creation of the Hate Crime and Public Order Act were not repeated by Parliament in the creation of the GRR Bill. How successful we were is moot as the Bill passed Parliament in the last hours before Christmas recess 2022 but did not go on to receive Royal Assent to become law. It was stopped by a Section 35 order, later validated by the Court of Session.

There is little doubt that this delay in the GRR Bill becoming an Act of Parliament allowed public opinion to burst into the insular political bubble as people across the world looked on incredulously at the photographs of a double rapist in a blonde wig and tight pink leggings, sent initially to the female prison estate in Scotland.

The Hate Crime Public Order Act, 2021, was implemented against the backdrop of a confused, scared public and an overwhelmed and embarrassed Police Scotland. It is worth noting some key points of assurance from Scotland's expert legal minds. Aggravations applies only when another crime has been committed and is determined to have been aggravated by malice towards one of a list of protected characteristics. The 2021 Act consolidates existing legislative protection and adds an additional protected characteristic to those covered.

The standalone offence of ‘intentionally’ ‘stirring up’ hatred now extends beyond race to include, sexual orientation, religion, age, disability, transgender identity and variations in sex characteristics but only applies to offences committed ‘intentionally’. ‘Stirring up’ racial hatred remains a wider protection as it retains including racial hatred proven to be committed ‘recklessly’. A ‘reasonableness’ defence applies to the ‘stirring up’ offence, with an explicit commitment to interpret ‘reasonableness’ with cognisance to our right to freedom of expression on face of the Act.

Significant concerns exist about what this Act will add to Scotland's statute book. Prosecutors may continue to rely on long-standing public order offences such as breach of the peace as a more straightforward means to achieve convictions. Legal underpinnings have significant protections that we are assured will be defended by the courts. The problem is that this relies on the Police's robust guidance to ensure the correct implementation of the law if we are to prevent the process from becoming the punishment and avoid fear leading to the self-censorship of our legal rights to freedom of expression.

Police Scotland’s Non-Crime Hate Incident (NCHI)’s ‘interesting’ third-party reporting centres, data processing, training, and information campaign were a revelation to most of the Scottish Public. Murdo Fraser, MSP and lawyer, looks likely to pursue legally, the assaulted protection on his Freedom of Speech and Expression from the discovery of an NCHI in a Subject Access Request.

The stated commitment to investigating every reported "incident" threatens to debilitate policing and create a system where the punishment is the process. This intent is coupled with NCHI data protection concerns and risks to personal freedoms, combining to form a nightmare scenario that a change to the guidance issued could mitigate against some of the damaging impacts.

NCHI was laudably introduced as a recommendation of the 1999 Stephen Lawrence Inquiry Report, which called for Codes of Practice to "create a comprehensive system of reporting and recording all racist incidents and crimes". Yet, when challenged in court, it led to immediately published interim guidance with further protections for speech and expression. Police Scotland has already stated that it would review its NCHI policy and procedures considering the ‘Miller v ‘College of Policing’ appeal in England. However, there has been no progress since this ruling in July 2022. Ironically, Police Scotland resources were preoccupied with trying to work out how to implement the Hate Crime and Public Order Act

Our over-stretched courts should not have to form a backstop for poorly implemented legislation, and our police force deserves better than taking a tarnishing to their reputation.

The modernisation and clarity offered initially were potentially beneficial goals of the Act. Failure to realise these goals rests squarely with our legislative process, where we have witnessed the effects of avoiding proper consideration when a political purpose is pushed through, mainly via whipped votes.

The gaps in this legislation are from a failure to engage with genuinely representative groups proportionately, and not just those funded primarily by the government. We needed to see demonstrated integrity in the fulfilling of commitments on clarity of intent and bespoke legislation for misogyny before this Act’s implementation. The reality this April Fool’s Day is that women are exposed to vexatious NCHI complaints and excluded from protection against aggravated Hate Crimes in Scotland in 2024.

For public trust to be re-established, the NCHI process must be brought into line urgently with established legal protections, and the shambolic training, guidance, and derogatory campaign promoted by Police Scotland revoked.

Let us, as parliamentarians, not wait for yet another inquiry into failings; let us work proactively, as a parliament, to re-establish and reinforce the safeguards in our collective behaviours becoming of our Scottish Parliament, which produced outcomes we can all be proud of.

As a junior minister in 2021, I voted for a Bill that promised a pathway to additional protections to make our open and welcoming Scotland safer for all. The reality, three years on, is that Scotland, our Police, and Parliament have been embarrassed, left to traverse a self-destructive pathway. The root cause of this, and other legislative failures, is the erosion of good governance to safeguard our legislative processes.

I must now side with those who call for repeal. The Chilling Effect has begun, and the original vision of the Act is lost.

The people of Scotland deserve to be respected and protected, and we look to our leaders to set the tone and to act on problems, not posture and prevaricate. As we enter Spring this Easter weekend, we should remember that even when things look past saving, new life can spring forth and renew.

You can sign our petition to scrap the Hate Crime Act by clicking here.