Consultation on amending Scottish hate crime legislation: analysis of responses

11. Stirring up offences (Q23–Q26)

Part Three: New stirring up of hatred offences

11.1 Stirring up hatred is behaviour which involves encouraging others to hate a particular group. Currently, standalone stirring up hatred offences only exist in relation to race. These existing offences – contained in Sections 18 to 22 of the Public Order Act 1986 – capture actions that are ‘threatening’, ‘abusive’ or ‘insulting’, with the intention of stirring up racial hatred, or which, having regard to all the circumstances, are likely to stir up racial hatred. Lord Bracadale’s review considered the need for stirring up offences for other groups and recommended that such offences should be introduced for each current protected characteristic (as defined in the Equality Act 2010), as well as any new protected characteristics. Question 23 in the consultation sought views on this recommendation. Subsequent questions asked for views on the threshold for any new stirring up hatred offences (Question 24), the possible reformulation of existing standalone provisions relating to stirring up racial hatred in line with any new provisions (Question 25), and the need for a specific provision protecting freedom of speech (Question 26).  

Question 23: Do you agree with Lord Bracadale’s recommendation that stirring up of hatred offences should be introduced in respect of each of the protected characteristics including any new protected characteristics? [Yes / No / Unsure]

Question 24: Do you agree with Lord Bracadale’s recommendation that any new stirring up hatred offences should require that the conduct is ‘threatening or abusive’? [Yes / No / Unsure]

Question 25: Do you think that the existing provisions concerning the stirring up of racial hatred should be revised so they are formulated in the same way as the other proposed stirring up hatred offences? [Yes / No / Unsure]

Question 26: Do you agree with Lord Bracadale’s recommendation that there should be a protection of freedom of expression provision for offences concerning the stirring up of hatred? [Yes / No / Unsure]

Key points

• A substantial majority of respondents (80%; 844 out of 1,051 respondents) disagreed with the introduction of stirring up offences for each protected characteristic. However, most organisations (69%; 55 out of 80 respondents) agreed.
• Those who supported the introduction of new stirring up offences thought this would achieve parity for all groups, and would recognise the gravity of hate crimes and the impact on those affected. It would also support consistent data collection. 
• There were three main reasons for opposing new stirring up offences: disagreement with the principle of laws based on protected characteristics (this was a common view amongst individuals and faith bodies); concerns about the impact on human rights and freedom of speech; and disagreement with the need for new offences. Some supported the current standalone race offences but did not wish to see further offences introduced.
• A majority of all respondents (72%; 743 out of 1,030 respondents) disagreed that any new stirring up offences should require ‘threatening or abusive’ conduct. However, most organisations (56%; 43 out of 77 respondents) agreed.
• Respondents who agreed with the requirement for threatening or abusive conduct thought this phrasing (i) offered the right balance in protecting freedom of expression and protecting identified groups, and (ii) was consistent with other legislation. Some were opposed to hate crime laws but agreed with the wording if new offences were to be created. Those who disagreed with the requirement offered two contrasting views: some said the proposed threshold was ‘too high’, while others said it was ‘too low’.
• There were mixed views on the option of revising the existing race provisions to be in line with other proposed stirring up offences – 45% of respondents agreed, 32% disagreed, and 23% were unsure (representing 299, 211, and 156 out of a total of 666 respondents), although most organisations (63%; 40 out of 64 respondents) agreed.
• Those supporting revision of existing provisions thought this would promote parity and clarity; however, there were a range of views on how this might be achieved. Organisations that disagreed with reformulation (mainly third sector bodies) were mainly concerned that this might make the prosecution of race cases more difficult, while individuals generally had wider concerns about hate crime laws.
• The vast majority of all respondents (91%; 955 out of 1,047 respondents) agreed that stirring up offences should include a protection of freedom of expression provision. 
• There was general agreement on the need to protect freedom of expression and uphold the rights contained in the ECHR. Respondents often saw this as an issue of ‘balance’ between freedom of expression, responding to stirring up, and protecting relevant groups. However, views differed on the point at which that balance should be struck. 
• Across these questions, respondents stressed the importance of consulting with relevant groups, and ensuring any resulting legislation was clear and well defined.

Introduction of additional stirring up of hatred offences (Q23)

11.2 As noted above, Lord Bracadale recommended that stirring up of hatred offences should be introduced in respect of each of the protected characteristics including any new protected characteristics (Recommendation 13). Lord Bracadale set out his reasons for this recommendation with reference to a series of key considerations: wrongfulness, harm, seriousness, symbolism, frequency of prosecutions, whether there was a gap in a law, and the benefit that might be gained from the introduction of new offences. And, while Lord Bracadale stated that the strongest case for extending stirring up offences to other protected characteristics may be made in respect of religion, he also thought that ‘parity’ between all protected characteristics (current and new) was justified and desirable. Question 23 invited views on this recommendation.

11.3 Table 11.1 shows that a substantial majority of respondents disagreed that stirring up of hatred offences should be introduced in respect of each of the protected characteristics, including any new protected characteristics – 80% of respondents disagreed and 15% agreed; the remaining 5% were unsure. However, organisations and individuals offered contrasting views. While 85% of individuals disagreed with this recommendation, 69% of organisations agreed. Among organisations, faith groups expressed different views to other types of organisation, with 13 out of 16 such groups disagreeing that stirring up of hatred offences should be introduced in respect of each of the protected characteristics including any new protected characteristics. 

Table 11.1: Q23 – Do you agree with Lord Bracadale’s recommendation that stirring up of hatred offences should be introduced in respect of each of the protected characteristics including any new protected characteristics?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	22	65%	9	26%	3	9%	34	100%
Public sector / partnerships	22	100%	–	0%	–	0%	22	100%
Faith groups	3	19%	13	81%	–	0%	16	100%
Other organisations	8	100%	–	0%	–	0%	8	100%
Total organisations	55	69%	22	28%	3	4%	80	100%
Total individuals	103	11%	822	85%	46	5%	971	100%
Total (organisations and individuals)	158	15%	844	80%	49	5%	1,051	100%

Percentages may not total 100 due to rounding.

11.4 Altogether, 822 respondents (68 organisations and 754 individuals) provided further comments at Question 23. The sections below present the views of those who agreed with the recommendation and those who disagreed, while a final section looks at other comments relevant to Question 23. 

Support for the introduction of stirring up of hatred offences in respect of each of the protected characteristics

11.5 Respondents who supported the introduction of stirring up of hatred offences in respect of each of the protected characteristics offered the following main reasons, echoing many of the points made by Lord Bracadale in discussing this issue in his report:

• All groups with protected characteristics should be treated the same with regard to hate crime laws. This was seen as logical, and in line with international thinking. It also was thought to offer benefits in terms of avoiding the perception of a ‘hierarchy’ of groups and victims, and helping with public understanding of the law. (There was, however, a view put forward that not all groups included in the Equality Act 2010 should automatically be covered by a stirring up offence; rather, this should only happen where there was evidence of need.)
• Stirring up of hatred was a serious matter and there needed to be an adequate legal response to deal with it. The introduction of additional offences would acknowledge the seriousness of such conduct and the impact it had on the individuals and communities targeted. It would also send a clear message about the unacceptability of such behaviour. Some respondents provided evidence and examples of the abuse experienced by different groups (e.g. disabled people, the LGBT community) to support the case for introducing additional stirring up offences. 
• Establishing stirring up offences for all protected characteristics would be helpful in supporting consistent data gathering and monitoring of abusive and threatening conduct targeted at different groups.

11.6 Occasionally, respondents acknowledged that limited use had been made of current offences related to stirring up racial hatred, but nevertheless thought it was important to have such offences on the statute book.

11.7 Some respondents noted that there would be challenges in drafting any new offences in a way that drew an appropriate distinction between expressing opinion and stirring up hatred. However, respondents in this group were generally of the view that it would be possible to achieve the right balance between freedom of expression and freedom from threat and abuse via clear legislation and well-defined thresholds (this issue is discussed further in relation to Question 24).    

Opposition to the introduction of stirring up of hatred offences in respect of each of the protected characteristics

11.8 Comments from those who were opposed to the introduction of additional stirring up offences (largely individuals, faith groups and some third sector organisations) focused on three main issues, as follows:

• Respondents disagreed with the principle of laws based on protected characteristics. This view was mainly expressed by faith groups and individuals who thought the law should treat all groups the same, and that having offences that were applicable to particular groups (i) effectively created a hierarchy of victims, and (ii) opened up the possibility of ongoing pressure to change or extend the groups covered. This was a key point made by those who were opposed to hate crime laws in general (see Chapter 3). With regard to stirring up offences in particular, these respondents argued that all individuals / groups should be protected from abusive and threatening conduct and speech.      
• Respondents (including faith groups, third sector organisations and individuals) were concerned about the potential impact on human rights and freedom of expression. They thought that the concept of stirring up hatred was poorly defined, and that there was too much subjectivity involved in (i) distinguishing between ‘disagreement and debate’ and ‘threatening and abusive conduct’, and (ii) determining ‘intent’ and assessing the ‘likelihood’ test. Thus, respondents thought that any new stirring up offences could have a negative impact on freedom of expression (including via self-censorship) and create a risk of encouraging unjustified or politically motivated complaints. Respondents often argued that freedom of expression and the right to challenge and disagree were essential to successful democratic societies and that laws that potentially suppressed opinion and debate could lead to increased tension and reduced community cohesion.
• Some respondents (including faith groups, some third sector organisations and some individuals) also did not think that additional stirring up hatred offences were needed, either because threatening and abusive behaviour was already adequately covered by existing legislation, or because they felt that there was insufficient evidence that stirring up hatred was a significant problem for the full range of groups with protected characteristics. Some also noted that the creation of additional stirring up offences ran counter to the aggravation-based legislative approach highlighted as ‘core’ in the consultation paper.   

11.9 In many cases, respondents offering these views explicitly stated that they had considered this issue from a Christian perspective and that they had concerns about the impact on Christian traditions in Scotland. These respondents were concerned that extending stirring up offences to other groups would have the effect of shutting down debate on issues such as religion, sexuality, same sex marriage and transgenderism, and inhibiting public preaching and the promotion and dissemination of religious teachings. However, it was also common for respondents to say that they thought the freedom to discuss opinions and beliefs should be available to those of all faiths and no faiths.  

11.10 Among those respondents opposed to the creation of additional stirring up offences there was nevertheless a view that ‘race’ was a ‘special case’ in terms of protected characteristics. Respondents agreed that the targeted abuse and threatening behaviour suffered by minority ethnic groups justified a specific legal response. Indeed, there was some concern that the introduction of new stirring up offences may have the unintended consequence of weakening the important message conveyed by the existing standalone race offences. Respondents putting forward this view included third sector organisations with a particular remit with regard to BME (black and minority ethnic) issues.   

11.11 The points made by respondents opposed to the creation of additional stirring up offences were repeated across Questions 24 to 27. 

Uncertainty about the introduction of stirring up of hatred offences in respect of each of the protected characteristics

11.12 Some respondents explained why they were unsure about this recommendation. Individuals who were unsure tended to make similar comments to respondents who were opposed to the recommendation: for example, they said that they had concerns about (i) the degree of subjectivity involved in defining stirring up and applying the law in a consistent way, (ii) the impact on freedom of expression, and (iii) the potential for ongoing pressure in the future to change or extend the groups covered by the law. Organisational respondents who said that said they were unsure (all third sector bodies) made two additional points: (i) they said they were not sure that stirring up hatred against other groups was a particular issue; or (ii) they called for a more holistic approach to tackling discriminatory behaviour and suggested that the need for stirring up offences for different categories should be considered in parallel with considering how to best formulate hate crime laws in general.

Other comments relating to new stirring up offences

11.13 Other points noted in response to Question 23, each made by just a few respondents, included the following:

• Further analysis was needed to consider the use made and effectiveness of the current race-related stirring up offence, and to establish the legal need for any new offences.
• It would be important to consult with relevant groups about the introduction and formulation of any new offences.
• A broader approach to tackling hate-related speech and behaviour was needed – there was a concern that additional stirring up offences could criminalise language and behaviour without addressing underlying views and attitudes.  

Threshold for new stirring up offences (Q24)

11.14 Lord Bracadale recommended that any new stirring up of hatred offences should (a) require conduct which is threatening or abusive; and (b) include a requirement (i) of an intention to stir up hatred, or (ii) that having regard to all the circumstances, hatred in relation to the particular protected characteristic is likely to be stirred up thereby (Recommendation 14). He stated that (i) a requirement for ‘threatening or abusive’ conduct, rather than ‘threatening, abusive or insulting’ conduct, as required by the current offence of stirring up racial hatred, would be consistent with other existing legislation in Scotland and elsewhere in the UK, and (ii) the inclusion of both ‘intent’ and ‘likelihood’ tests offered appropriate flexibility in prosecuting offences. Question 24 invited views on this recommendation with a focus on the requirement for ‘threatening or abusive’ conduct. 

11.15 Table 11.2 shows that the majority of respondents (72%) disagreed that any new stirring up hatred offences should require ‘threatening or abusive’ conduct. Amongst the remaining respondents, 22% agreed that new stirring up hatred offences should require ‘threatening or abusive’ conduct, while 6% were unsure. However, organisations were more likely than individuals to answer ‘yes’ (56% compared to 19%), while individuals were more likely than organisations to answer ‘no’ (75% compared to 32%). Among organisations, faith groups were markedly less likely than other organisations to agree with this recommendation, with all but one (14 out of 15 respondents) answering ‘no’ to this question.

Table 11.2: Q24 – Do you agree with Lord Bracadale’s recommendation that any new stirring up hatred offences should require that the conduct is ‘threatening or abusive’?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	15	45%	10	30%	8	24%	33	100%
Public sector / partnerships	19	90%	1	5%	1	5%	21	100%
Faith groups	1	7%	14	93%	–	0%	15	100%
Other organisations	8	100%	–	0%	–	0%	8	100%
Total organisations	43	56%	25	32%	9	12%	77	100%
Total individuals	184	19%	718	75%	51	5%	953	100%
Total (organisations and individuals)	227	22%	743	72%	60	6%	1,030	100%

One individual respondent answered 'yes and no'. This response is not included in the table above.

Percentages may not total 100 due to rounding.

11.16 Altogether, 751 respondents (53 organisations and 698 individuals) provided further comments at Question 24. The sections below look at reasons for agreeing and disagreeing with the recommendation, while two further sections look at other aspects of the proposed thresholds, and the scope and application of the thresholds. 

Agreement with the requirement for conduct that is threatening or abusive

11.17 Respondents who agreed with the requirement for threatening or abusive conduct thought that the proposed phrasing (i) offered an appropriate balance in terms of protecting freedom of expression and protecting identified groups, and (ii) was consistent with other legislation (e.g. the Criminal Justice and Licensing (Scotland) Act 2010, and stirring up offences in England and Wales), and (iii) was easily understood (and already well understood in other contexts). Some respondents, nevertheless, emphasised the importance of ensuring the term ‘abusive’ was well defined. Respondents offering these views included public sector organisations, some law and justice bodies, and some individuals.

11.18 Less often, respondents (individuals and third sector groups) were willing to endorse the proposed phrasing if new offences were to be introduced, but also said that this formulation represented the minimum acceptable threshold in order to protect free speech. In some cases, respondents said that ‘threatening’ rather than ‘abusive’ behaviour should be key to the offence, or that there should be a clear link between the alleged stirring up and resulting criminal activity (see also paragraphs 11.19 and 11.20 below).    

Disagreement with the requirement for conduct that is threatening or abusive 

11.19 Respondents who indicated opposition to the suggested phrasing often expressed opposition to hate crime laws or stirring up offences in general. Those making more specific comments offered two main perspectives.

• The most common view, expressed by faith groups and individuals, was that stirring up hatred was a serious charge and required an appropriately high threshold. A threshold based on ‘threatening or abusive’ conduct was seen as involving too much interpretation and subjectivity which could lead to inappropriate prosecutions and put a burden on the justice system. These respondents generally endorsed the proposed exclusion of ‘insulting’ conduct on the basis that this represented too low a threshold for criminal law. However, they also opposed the inclusion of ‘abusive’ conduct, which they thought was too subjective and created too great a risk to freedom of speech and expression. These respondents argued for a threshold based solely on ‘threatening’ behaviour. Additionally, some respondents stressed that ‘threatening’ conduct would need to be well defined and, in any specific case, would need to be credible and clearly linked to criminal behaviour. 
• Less often, respondents (mainly third sector groups) were concerned that the proposed threshold was too ‘high’. Some commented directly on the proposed exclusion of ‘insulting’ conduct and argued that insults, particularly on a repeated basis, should meet the criteria for hate speech. In a number of cases, respondents (including some who nevertheless indicated agreement with the proposed phrasing at the tick-box part of Question 24) suggested the phrasing of the offence might be adjusted to include conduct / language that was ‘grossly insulting’, ‘derogatory’, ‘devaluing’ or ‘depersonalising’.   

Comments on other aspects of the proposed threshold

11.20 It was common for individuals, faith groups, and some types of third sector organisations to comment on the latter part of the proposed threshold – that is, the need for intent to stir up hatred, or (ii) the likelihood that hatred would be stirred up. These respondents thought that a clear link to resulting criminal action or clear evidence of ‘intent’ or of direct encouragement to others to take action should be crucial to the offence, and were concerned about how this would be evidenced. However, they were particularly opposed to the possibility of prosecution based on the likelihood of stirring up hatred – they thought this relied on subjective interpretation to an unacceptable extent. In this context, some expressed a preference for the term ‘incitement’ or ‘vilification’ rather than ‘stirring up’.

11.21 In a few cases, respondents suggested the offence should incorporate a ‘reasonable person’ test – that is, how would a reasonable person judge the conduct?

Comments on the scope and application of any new stirring up offences

11.22 As well as commenting on the proposed phrasing of the threshold for any new stirring up offences, some respondents (individuals and third sector groups) also commented on the scope and application of any such offences – that is, who they might apply to, and the type of conduct that might be covered by the proposed definition. These respondents thought stirring up offences should: 

• Take account of context, circumstances, demeanour etc. – this point was made by those supportive of and those opposed to additional stirring up offences
• Cover cumulative incidents that may not individually meet the set thresholds
• Cover the dissemination of false information that puts people at risk
• Cover any prejudiced, offensive, demeaning, or discriminatory conduct, including that conveyed in humour 
• Address institutionalised stirring up by the media, politicians and other public figures, via negative portrayals and language.

Reformulation of existing stirring up offences (Q25)

11.23 Lord Bracadale recommended that, in the interests of consistency, any replacement of the current stirring up of racial hatred provisions included within consolidated hate crime legislation should use the same phrasing as that proposed for any new stirring up offences – that is, it should require conduct that is ‘threatening or abusive’; rather than ‘threatening, abusive or insulting’. Question 25 asked for views on this possible reformulation.

11.24 Table 11.3 shows that there were mixed views on the option of revising existing provisions concerning the stirring up of racial hatred so that they are formulated in the same way as the other proposed stirring up hatred offences – 45% of respondents agreed, 32% disagreed, and 23% said that they were unsure. However, organisations were more likely than individuals to answer ‘yes’ to this question (63% compared to 43%), while individuals were more likely than organisations to answer ‘no’ (34% compared to 14%). 

Table 11.3: Q25 – Do you think that the existing provisions concerning the stirring up of racial hatred should be revised so they are formulated in the same way as the other proposed stirring up hatred offences?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	12	41%	8	28%	9	31%	29	100%
Public sector / partnerships	18	86%	–	0%	3	14%	21	100%
Faith groups	5	71%	–	0%	2	29%	7	100%
Other organisations	5	71%	1	14%	1	14%	7	100%
Total organisations	40	63%	9	14%	15	23%	64	100%
Total individuals	259	43%	202	34%	141	23%	602	100%
Total (organisations and individuals)	299	45%	211	32%	156	23%	666	100%

One individual respondent answered 'yes and no'. This response is not included in the table above.

Percentages may not total 100 due to rounding.

11.25 Altogether, 302 respondents (46 organisations and 256 individuals) provided further comments at Question 25. The following sections look at support for and opposition to or reservations about the possible reformulation of existing race provisions.

Support for reformulation of existing race provisions

11.26 Respondents who agreed that existing provisions concerning the stirring up of racial hatred should be reformulated to reflect the other proposed stirring up hatred offences thought that consistency across offences was important and made two main points: 

• They wished to see parity of treatment for all groups covered by stirring up laws.  
• They thought that this would bring clarity to the law in this area, and be helpful both in terms of operational practice and public understanding. 

11.27 Organisational respondents offering this view generally supported the proposal to achieve consistency by bringing the wording of the current stirring up of racial hatred offence into line with the wording of the additional stirring up offences now proposed. In particular, they expressed support for removing the reference to ‘insulting’ conduct. One respondent pointed to evidence suggesting that a similar reformulation of the law in England and Wales had had minimal impact on the prosecution of stirring up of racial hatred cases. 

11.28 Individuals who expressed support for consistent wording were also supportive of the proposal to exclude the reference to ‘insulting’ conduct. However, these respondents often also went on to offer further views about the common wording that should be used across all stirring up offences. The points made largely repeated those made in response to other questions – for example, respondents expressed concern about the scope and ‘subjectivity’ of the legal threshold for stirring up offences, and called for any common formulation to set a high threshold based on tightly defined terms. They also argued for the inclusion of provisions protecting freedom of speech (see paragraphs 11.39 to 11.42).

11.29 Some respondents, particularly individuals, stated their opposition to hate crime or stirring up laws, but nevertheless wished to see consistency (based on a high threshold) if new offences were to be introduced.

Opposition to or reservations about reformulation of existing race provisions

11.30 Organisations that did not wish to see the reformulation of existing race provisions (mainly third sector bodies) were generally concerned that this might make the prosecution of stirring up of racial hatred cases more difficult. A few individuals also expressed this concern. These respondents felt that the inclusion of ‘insulting’ conduct within the current formulation of the stirring up racial hatred offence had merit in capturing apparently low-level conduct (sometimes persistent in nature) that could be experienced as ‘abusive’ or ‘threatening’ by the individuals at whom it was targeted. Some queried whether analysis of the impact of the change in England and Wales provided adequate evidence to support the introduction of the same approach in Scotland. Some respondents in this group suggested that the concept of ‘abuse’ could be explicitly defined to include ‘insulting’ or ‘deliberately insulting’ conduct. One organisation that otherwise indicated support for the consistent formulation of stirring up offences suggested that the term ‘insulting’ might be replaced by ‘grossly insulting’.

11.31 The remaining respondents who indicated disagreement with the reformulation of stirring up of racial hatred offences simply reiterated their opposition to or concerns about hate crime laws or stirring up offences (see paragraphs 11.8 to 11.10). With regard to ‘stirring up’ in particular, some in this group (re)stated the view that such offences should apply to race but should not be extended to cover other protected characteristics (disability was also seen as an ‘exception’ by some respondents).  

Other comments on the reformulation of existing race provisions

11.32 In discussing the possible reformulation of existing race provisions, respondents noted the importance of (i) seeking the views of BME groups on this issue; and (ii) ensuring that case law associated with the current stirring up racial hatred offence was not lost as a result of any legislative consolidation.

Protecting freedom of expression within stirring up offences (Q26)

11.33 Lord Bracadale’s report acknowledged concerns that any extension of stirring up hatred offences might have an adverse effect on freedom of speech and freedom of expression. Although he ‘[did] not consider that new stirring up of hatred offences would have the effect of stifling legitimate views or seriously hindering robust debate’, he nevertheless recommended that protection of freedom of expression be included in stirring up offences, in line with the approach taken in the now repealed Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (referred to here as the OBFTC (Scotland) Act 2012), and in stirring up offences in England and Wales relating to religion and sexual orientation. Question 26 invited views on this recommendation.

11.34 Table 11.4 shows that the vast majority of respondents (91%) agreed that there should be a protection of freedom of expression provision for offences concerning the stirring up of hatred. This view was expressed by the majority of both organisations (84%) and individuals (92%). Amongst organisations, the three respondents who disagreed were all third sector organisations. 

Table 11.4: Q26 – Do you agree with Lord Bracadale’s recommendation that there should be a protection of freedom of expression provision for offences concerning the stirring up of hatred?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	20	71%	3	11%	5	18%	28	100%
Public sector / partnerships	19	90%	–	0%	2	10%	21	100%
Faith groups	18	100%	–	0%	–	0%	18	100%
Other organisations	6	75%	–	0%	2	25%	8	100%
Total organisations	63	84%	3	4%	9	12%	75	100%
Total individuals	892	92%	49	5%	31	3%	972	100%
Total (organisations and individuals)	955	91%	52	5%	40	4%	1,047	100%

Percentages may not total 100 due to rounding.

11.35 Altogether, 843 respondents (61 organisations and 782 individuals) provided further comments at Question 26. 

11.36 It should be noted that the open question at Question 26 was targeted at those who answered ‘yes’ to the tick-box question and asked respondents if they had any comments on what should be covered by any such protection of freedom of expression provision. However, it was common for respondents to also use their comments to explain their reasons for agreeing with the recommendation, as well as to discuss how any such a provision might be framed and what it might cover, and each of these issues are covered in the section below.    

11.37 Some of those who answered ‘no’ or ‘unsure’ provided comments, and their views are also covered. 

11.38 It should also be noted that many of the comments made at Question 26 related to views on hate crime legislation or stirring up offences in general, rather than on the option of including provisions to protect freedom of expression in stirring up offences. These points – largely expressing opposition to hate crime legislation or concern about the potential impact on freedom of speech and freedom of (religious) expression – are covered in the analysis relating to Question 23 (paragraphs 11.8 to 11.10 above) (and elsewhere in the report) and are not repeated in any detail here.

Support for a freedom of expression provision

11.39 As shown in Table 11.4, there was widespread support – amongst both organisations and individuals – for Lord Bracadale’s recommendation to incorporate a protection for freedom of expression in any stirring up offences.

11.40 Across all respondent types, there was a clear view that it was important to protect freedom of expression and / or to uphold the rights contained in Articles 9, 10 and 11 of the ECHR (i.e. the rights to freedom of expression, thought, conscience, and religious expression). The proposed provision was seen as helpful in achieving this. 

11.41 It was common for respondents, organisations in particular, to see this as an issue of ‘balance’ – they noted the need to achieve an appropriate balance in the law between allowing freedom of expression, and preventing or responding to ‘stirring up’ and providing adequate protection to relevant groups. 

11.42 However, there were differing views about the appropriate point at which any balance should be struck, and the priority that should be attached to different perspectives in arriving at the correct balance. On the one hand, some respondents supported the inclusion of such a provision but argued that care was needed to ensure that any freedom of expression provision did not undermine the overall aim of the legislation in protecting groups and providing an effective response to the stirring up of hatred. On the other hand, other respondents (most notably, faith groups and individuals) tended to prioritise the right to freedom of expression (and religious expression in particular) and were concerned that any (new) hate crime offences did not impact on that freedom. Some in this latter group explicitly stated their opposition to hate crime laws or stirring up offences but said that if such laws are to be in place, they must incorporate robust and explicit protection for freedom of expression. 

How the provision should be framed and what it might cover

11.43 Respondents of all types thought that the law needed to be clear in terms of what was and was not regarded as stirring up of hatred, and what was and was not covered by any freedom of expression provision. They also commented that this would need to be conveyed to the public in an effective way. Respondents noted the need for (i) careful drafting of any such freedom of expression provision, and (ii) guidance on how this would be implemented. There was a suggestion that the provision should be developed in consultation with relevant groups and communities.    

11.44 In contrast, and less often, some respondents favoured a less prescriptive approach with some noting the role of police and judicial practice and legal precedence in establishing the distinction between acceptable debate and dialogue, and stirring up hate.

11.45 However, there was broad support for Lord Bracadale’s proposal that any freedom of expression provision should reflect the provisions included in the now repealed OBFTC (Scotland) Act 2012 (Section 7), and the Public Order Act 1986 (sections 29JA and 29JA).

11.46 In line with support for this approach, there were three specific suggestions (all made by faith groups and individuals) for protections that might be incorporated into the law:

• With regard to stirring up religious hatred, respondents called for protection for the right of individuals to affirm their religion as true and others as false, and to encourage people to change their religion. 
• With regard to stirring up hatred on the basis of sexual orientation, respondents called for protections to allow individuals (i) to say that non-heterosexual orientation and behaviour was ‘sinful’, and to encourage people to renounce such lifestyles and practices, and (ii) to argue against same sex marriage.   
• With regard to stirring up hatred on the basis of transgender identity, respondents called for protections to allow individuals to refute transgenderism and refer to people according to their sex at birth. 

11.47 It was noted that, in the first two cases above, equivalent protections had been included in relevant stirring up offences in England and Wales and in the now repealed OBFTC (Scotland) Act 2012. 

11.48 Some respondents, particularly faith organisations and individuals, offered further detailed comment as to what should be covered by a protection of freedom of expression provision. Such respondents called, variously, for protection for the following:

• All speech, with minimal exceptions
• All speech that falls short of threatening or encouraging violence, harassment or other crimes, or speech that does not impinge on the rights of others
• All speech relating to faith / belief 
• All ‘opinion-based’ speech, including controversial / unpopular views, views challenging cultural norms and views that may offend others 
• All dialogue, debate and opinion relating to political, social, moral, scientific and ‘lifestyle’ issues
• Academic debate and discussion
• Speech aimed at organisations / institutions / states rather than individuals
• Views expressed via art, comedy, or satire.

Opposition to or reservations about a freedom of expression provision

11.49 Fewer than 10% of respondents disagreed with (5%) or were unsure (4%) about the inclusion of a provision to protect freedom of expression in offences relating to the stirring up of hatred (see, again, Table 11.4). 

11.50 Organisations that disagreed or had reservations about Lord Bracadale’s recommendation had concerns about striking an appropriate balance between the right to freedom of expression and the right to protection from threat and abuse. There was a view that current protection of freedom of expression as provided by the ECHR was adequate. This group suggested that the inclusion of a specific provision within hate crime legislation was therefore unnecessary and may weaken the protection provided to groups with protected characteristics. There was also concern that this would send out the wrong message about the acceptability of different behaviours. 

11.51 Individuals who disagreed or expressed reservations with Lord Bracadale’s recommendation largely did so in the context of wider concerns about hate crime legislation, and its impact on freedom of expression.

Other comments on the creation of additional stirring up offences

11.52 Respondents offered a range of other comments related to the creation of additional stirring up offences, including the following:

• The need for a new stirring up hatred offence based on sex / gender should be considered alongside wider consideration of the legal response to misogynistic behaviour.  
• Any new offences should be clearly defined, and should be accompanied by guidance to ensure a good level of understanding among professionals and the public about the application and interpretation of the law and the legal thresholds.
• The need for any new stirring up offences should be considered and understood alongside the need to include appropriate protections for freedom of speech.   

11.53 Respondents who were generally opposed to new stirring up offences also suggested that:

• There should be the option of prosecuting anyone falsely accusing another individual of stirring up hatred.
• Threatening and abusive conduct should simply be a standalone offence, with no reference to protected groups.