Scottish PEN welcomes today’s announcement by Humza Yousaf, Cabinet Secretary for Justice, that key changes will be made to the proposed Hate Crime and Public Order (Scotland) Bill, including the removal of Section 4 which related to the performance of plays.
Scottish PEN joined many other organisations in raising concerns that the current draft of the Bill included additional provisions on culpability where the offence of stirring up hatred was ‘committed during public performance of a play’.
This provision meant that someone who presented or directed a theatrical production in which a performer stirred up hatred may be found guilty of the offence alongside the actors or performers whose words or behaviour form the basis of the charge. As the general principle of art and part guilt in Scots law already holds that those who aid or abet the commission of a crime are as guilty as the principle offender, it was unclear why this section was needed. We were concerned that the inclusion of Section 4 would unduly target the theatre industry, and lead to increased censorship in the creative arts.
We are therefore pleased to learn that the Scottish Government will seek to remove Section 4 at Stage 2 of the Bill. In his statement today, the Cabinet Secretary acknowledged the concerns expressed by the performing arts community that the provision appeared to ‘single them out’ and recognised the ‘anxiety that has caused’.
Stirring up hatred offences
Scottish PEN was also encouraged by the Cabinet Secretary’s announcement on Wednesday 23rd September that it would now be a requirement that intention to stir up hatred is proven beyond a reasonable doubt before an offence can be prosecuted.
Scottish PEN joined many other organisations in raising concerns that the current draft of the Bill required only that behavior was threatening, abusive or was likely to stir up hatred, regardless of intention. In his statement in September, the Cabinet Secretary stressed the importance of striking a balance between the defense of freedom of expression and protection of groups targeted by hate crime and stated his hope that this significant amendment would help to build consensus around the Bill. The new requirement will also apply to offences around the possession of inflammatory materials.
Scottish PEN’s response to the recent consultation on the Bill highlighted the possibility of increased self-censorship by writers, a ‘chilling effect’ on journalism and a perceived restriction on artistic freedoms should an ‘intent only’ approach fail to be taken. We believe that restricting offences to situations where intention to stir up hatred can be demonstrated will significantly allay anxieties about the reach of the legislation.
Scottish PEN recognises the serious harm caused by hate crime in our society, and the impact it has on writers’ ability to live their lives free of fear or censorship. We welcome the changes outlined today and look forward to constructively contributing to the development of the Bill and ensuring that protection of the freedom of writers is of central importance.
You can read our full response to the consultation on the Hate Crime and Public Order (Scotland) Bill here.
You can watch our contribution to the Justice Committee evidence session on 10 November 2020 here.
If you have any questions about Scottish PEN’s response, please contact us at info@scottishpen.org.