A few weeks ago, Harry Potter novelist JK Rowling challenged Police Scotland to arrest her. Your eyes did not deceive you: Britain’s once favourite young adult fiction writer challenged the authorities to put her in handcuffs in a dramatic shift for the former world’s highest paid author. For those not aware, Rowling’s challenge was a tongue in cheek response to the Scottish Government’s newly launched 2024 Hate Crime and Public Order Act. 

Scotland’s new legislation is in essence an ambitious expansion of the UK’s hate crime laws. Prior to Scotland’s legislative action, the UK’s hate crime laws prohibited threatening or abusive behaviour which intended to stir up hatred based on racial characteristics- specifically, the 1986 Public Order Act focused on racial hatred. Scotland’s legislation expanded the groups that are protected to include disability, age, religion, sexual orientation, transgender identity and variations in sex characteristics. 

On the face of it, this seems like an intuitive move- why should some arbitrary and protected characteristics such as race be protected while others are not protected. It is worth noting how we do not believe that some arbitrary and protected characteristics should be protected in employment law and others should not- it is not justifiable to allow discrimination on the basis of someone’s disability but prevent discrimination on the basis of someone’s race. 

Nonetheless, the Act’s detractors are not limited to a Harry Potter novelist with former Rangers footballer Ally McCoist detailing that under the legislative changes he would break the law when Rangers played Celtic in the Old Firm- this was in reference to the religious and sectarian abuse that is associated with the fixture. Meanwhile, the Act has drawn ridicule from the Conservative UK Government with Prime Minister Rishi Sunak detailing that it represents an attack on free speech and an attempt to lock up JK Rowling. 

Tackling the objections

However opportunist these criticisms may seem, there is something in them: there is a risk that this legislative change may restrict perfectly legitimate free speech. Additionally, The Association of Scottish Police Superintendents and The Scottish Police Federation have raised concerns about the practical implementation of the act- in this regard, due to the pressure on Scottish Police and the lack of training, the act will not be properly policed and therefore, it is a futile exercise. 

We can divide the opposition to the Act into 2 camps: 

A) The Act may suppress legitimate speech.

B) The Act will not be effectively implemented. 

Objection A

The idea that the Act may suppress perfectly legitimate speech is possible in two ways: 1) the Act suppresses legitimate speech in and of itself; and 2) the Act instrumentally causes regulatory chill. 

On the idea that the act suppresses legitimate speech in and of itself, this reasoning is somewhat captured by JK Rowling’s criticism. Rowling was specifically concerned that the legislation would prohibit gender-critical feminists from defending a biological definition of sex and thereby, misgendering trans people. 

However, whether this is the case is dubious. For example, Scotland’s then First Minister Humza Yousaf has detailed that a ‘very high threshold’ would have to be met to trigger arrests under the Act. Moreover, testament to the high threshold, in the first week of the Act, Police Scotland noted that only 240 of the 7,152 reports of hate crime were logged as hate crimes. Meanwhile, former Conservative member of the Scottish Parliament and convener of the Justice Committee in the Parliament, Adam Tomkins, asserted that stating that sex is a biological fact is not a hate crime under the Act. Perhaps then the objection that the Act suppresses legitimate free speech, such as a biological definition of sex, is a politically opportunistic way of framing the debate around trans issues rather than an empirically sound objection. 

On the second half of the objection, the Act may restrict legitimate speech through regulatory chill. In this sense, the Act stops people from expressing themselves thoroughly. This is because they may be anxious about suppression as the legislative changes leads to a chilling effect on speech through self-censorship. This regulatory chill argument is best captured by political philosopher Joshua Cohen in his seminal 1993 article ‘Freedom of Expression.’ In his article, Cohen noted that government intervention has a detrimental impact on public discussion as individuals might be less expressive. Moreover, the argument has been adopted by Roddy Dunlop KC, Dean of the Faculty of Advocates, in regard to the new Scottish hate crime law.

Nonetheless, there is reasonable doubt over this. For instance, to what extent is this objection a self-fulfilling prophecy? In this regard, detractors believe this Act creates a culture of self-censorship as they contribute to this and construct a sense of a crisis in free speech. Moreover, how do detractors even prove that there has been a ‘chilling effect’? This seems empirically hard to prove- the evidence might be purely anecdotal. 

Objection B 

The second stream of objections thrown at the new law is that it will be impossible to implement. This is because of two reasons: 1) Scottish Police is already stretched as it is and 2) the police have not been given adequate training to deal with the new legislation. 

While these criticisms are perfectly legitimate and reasonable, they are misguided. For instance, extend this rationale to other laws and the conclusions seem at least questionable. Recent research exemplified that the Police in some parts of England and Wales failed to attend nearly 3/4s of burglaries in the UK. This seems to suggest that Police in England and Wales do not have the capacity to maintain the criminalisation of burglary, they are therefore, overstretched and cannot implement the law properly. Yet few would argue that this means we should decriminalise burglary.

However, this is simplistic. Instead, the burglary example shows that the police’s inability to proper enforce something is not enough on its own to argue against the Act- there needs to be something deeper. For instance, when some argue for the decriminalisation of some recreational drugs, they don’t just appeal to the police’s failure to enforce prohibition; they also appeal to moral ideas about individual liberty and the economic gains from taxing such substances. Finally, even if we concede that the failure to enforce is a strong enough objection to the Act, this does little to challenge the symbolic importance of such legislation.

Back to basics

Perhaps the best way to approach the Act is to take it back to basics. As mentioned prior, in essence, the Act is an extension of protected characteristics in hate crime law from just race to other arbitrary and protected characteristics. It seems difficult to argue that some protected characteristics should be protected but others not- therefore, the legislation seems like an intuitive step forward. Note that we do take a similar approach for anti-discrimination legislation- all employment discrimination based on protected characteristics is condemnable. Or imagine yourself in a pub; if someone hurls racist abuse and another person hurls abuse towards a disabled people, are they not both equally morally condemnable? Maybe then, when we remove the noise and political opportunism and take the Act back to its basic underlying idea, it is more morally intuitive and compelling than we first realise.