The Real Test: ‘What Could a Malevolent Person DO, using this …?’

 

A recent article in the Herald titled "Herald View: The real test of the Hate Crime Bill comes in its application" concludes by stating:

"The passage of this bill demonstrated a desire to protect rights; but so too did the objections that were raised to it. A majority of MSPs think they have struck a balance: the effectiveness and application of its measures in practice will be the test."

/https://www.heraldscotland.com/news/19156879.herald-view-real-test-hate-crime-bill-comes-application/

This really is not good enough!  Waiting to see how the Bill works in practise means exposing citizens to possible harms. 

 

*These harms are foreseeable.

*If they are foreseeable, then they are also preventable.

*And if they are preventable then surely there is a moral duty to prevent harm?

 


 

The Hate Crime(s) Scotland law, introduced by Humza Yousaf is full of vague and undefined terms.  (See my article https://www.thinkscotland.org/thinkbusiness/articles.html?read_full=14340  )

 

As described by Jamie Gillies from ‘Free to Disagree’

“Today is a dark day for freedom of expression in Scotland. In the run-up to this vote, MSPs were repeatedly warned that there are still problems with the stirring up hatred offences. Free speech protections are considered inadequate and, chillingly, no defence exists to protect private conversations in the family home. Amendments from MSPs on the left and the right to address these issues were voted down. The impact of these omissions will be seen later in the courts and in the lives of ordinary citizens.

 

We all oppose hatred and prejudice. However, it has never been clear how, precisely, the new stirring up offences will counter hatred. There was no gap in the law to bridge. Good laws already exist to deal with threatening and abusive behaviour, incitement and breach of the peace. As laudable as the stirring up offences sound, they simply aren’t necessary and, ironically, they could do harm to, rather than improve, social cohesion in Scotland.”

 

Jim Sillars explains:

“I believe that this is one of the most pernicious and dangerous pieces of legislation ever produced by any Government in modern times in any part of the United Kingdom.

 

The new legislation is going to open up lots of people – who do not intend to direct hate at anyone – to find themselves being reported to the police for hate crimes. And there will be lots of malicious and vexatious complaints because most people are not lawyers and will tend to define hate crime as they see it, and not necessarily as the law sees it.

 

The important thing is that this bill, when it becomes an Act, will ultimately be tested in court.”

 

When you can foresee the ways in which a Bill will be tested in court, then I would suggest you already know what is wrong with it. So why should innocent people have to suffer the trauma of being arrested and being taken to court just to show that the Bill is wrong in ways that so many people have already stated?

 

So - I would suggest that the way to foresee the harms that can be caused to ordinary citizens is to look at the Bill in the light of:  

 

‘What Could a Malevolent Person DO, using this ...?’

 

I would advocate using this question as a test for all government structures, laws, acts, decisions, rules and guidance etc.

 

It is a big mistake to rely on the benevolence of those who have the power to use a law or rule or structure etc., a mistake which Alex Salmond recently commented that he may have made concerning the structures in Holyrood – he had not foreseen how malevolent people using them could act!

 


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