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I did wonder what all the fuss was about. I don't live in Scotland, I live in the UK though. So it's kinda partially relevant to me. It's also relevant to JK Rowling I guess. But really not sure why Musk or Rogan feel the need to weigh in.
So, the act itself is not that long and is here https://www.legislation.gov.uk/asp/2021/14/introduction. There was also a 70+ page consultation/memorandum document that I also read (here https://www.parliament.scot/-/media/files/legislation/bills/s5-bills/hate-crime-and-public-order-scotland-bill/introduced/policy-memorandum-hate-crime-and-public-order-scotland-bill.pdf).
So, I think generally the law is well-meaning and a good thing. I think there were a few things I took issue with in the consultancy. Those were mainly that they had a review of the law by a lord, and a consultancy with individuals and organisations. However, they seemed to just not take into account some of the recommendations from either source when it didn't suit them.
When the consultancy didn't turn up a result they liked, they would just state that it's likely the people didn't favour hate crime law overall. Now to me that's kinda the point. If most people don't want an extension of hate crime law, and you're asking them about creating an extension of hate crime law, that consideration should have been taken into account.
I also think that Lord Bracadale raised a few good points which were also dismissed. The main one being about not including insulting as a qualifier for the new hate crime law. Here, I'd agree with what the people surveyed said. The term is far too subjective to be used in a law with such a maximum sentence. There's nothing wrong with the spirit of the law, but I believe it should be abundantly clear when the line for breaking the law has been crossed. Saying "that a reasonable person would consider to be threatening, abusive or insulting" isn't a clear objective statement. It makes it very subjective and very interpretable by the police officer(s) involved and the CPS.
Of course, none of the above is why the aforementioned people are complaining. But having read through it, those are just my concerns.
I have the same concerns about the Public Order Act (UK law, 1986) that has similar subjective definitions. However, that doesn't include "insulting" and only has a maximum sentence of 6 months and is almost always dealt with by way of a fine. So, the threshold being low and subjective isn't as concerning. This law seems to have a lower threshold to satisfy (despite the memorandum document stating it was meant to have a higher threshold than the existing laws it replaced and augmented) but a considerably longer maximum sentence (1 year summary, 7 years on indictment), which will almost certainly mean higher values in the sentencing guidelines. This is my main concern with it.
In summary, I think as an act and new law overall, it's fine and I do hope if used appropriately it will make people safer. I just feel like there's scope for over-zealous application due to the subjective language used. Time will tell I guess if that happens or not once cases and convictions start to happen.
Thanks for your analysis. I was busy being angry about Bro Jogan and this diffused it and brought me back to the more important topic. I’ll give the memorandum a read.
The issue I have is unintended listening to deliberately inflammatory jokes between friends. And that any reported incident, crime or not goes on a permanent public record.
Yeah, I did notice the lack of exception for a private dwelling as exists for the Public Order Act. On one hand, I don't think there's a place for some jokes. But on the other hand, if they're happening between people in a private setting, then I don't think it should be the law's business.
In terms of reported incidents. I think recording for anonymous statistics is fine. I'm very wary of naming people that haven't even been charged, for example. It's a slippery slope. But, keeping the number of reported incidents is good for statistics. I am aware of the risk that also entails, though.
A lot of this is in the "it might be fine" territory, but weaponisable laws concern me. It's not like public trust in the police is particularly high right now either for good reason.