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The Hate Crime and Public Order (Scotland) Bill introduced by the Scottish Justice Secretary looks to extend the law on ‘hate crime’ covering particular characteristics, including religion, sexual orientation and transgender identity. If the law is passed by Holyrood, it means that words or behaviour considered to be “abusive” and “likely” to stir up hatred would constitute an offence.
But QC Roddy Dunlop claims the laws could mean stand-up comedians won’t feel comfortable telling very many jokes, such as the classic “Scotsman, Irishman and Englishman go to a pub” joke.
The QC, who serves as vice-dean at the Faculty of Advocates, the independent body of lawyers in Scotland, also said the new laws could impede free speech.
Speaking to The Times of Scotland, he added: “How many stand-up comedians will feel comfortable telling any jokes if this law is passed?
“People could complain that the joke discriminates against Scottish people’s national identity.
“We worry it will be too wide and too much of a curb on freedom of expression.”
Liam Kerr MSP, justice spokesman for the Scottish Conservatives, added: “This does look like the justice secretary has been caught trying to reintroduce the Offensive Behaviour at Football Act by the back door.
“This would seem to be a particularly foolish move given the public humiliation they received over that.”
The Offensive Behaviour at Football Act was introduced in 2012 and made it a criminal offence for football fans to discriminate against certain traits such as religion, ethnic identity, class, or region at matches.
However, it was scrapped in 2018 following severe concerns over freedom of speech.
Justice Secretary Humza Yousaf MSP has also apologised for misrepresenting the legislation after discussing it in Parliament earlier this month.
The Justice Secretary had told Holyrood that a person’s actions would have to be “abusive and threatening” for a prosecution to take place under the Bill — a lower threshold for conviction.
But it was pointed out by opposition party members a perception of “abuse” could trigger a criminal complaint under the draft wording.
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Aamer Anwar, a prominent Scottish human rights lawyer stressed that the new law would criminalise behaviour that “destroys lives” and not free speech.
The current Rector of Glasgow University, added to The Times: “There’s always a caveat with free speech and that requires you to act responsibly.
“It’s not just a case that someone insults somebody and they’ll end up in jail. Politicians insult each other all the time.
“I don’t think such accusations would see the light of day in our court system and I don’t think any judge would convict on that basis.”
He continued: “But when I have been in a courtroom and was dealing with shopkeepers who were being racially abused, that was always the charge that would fall off the charge sheet even though that was often the most hurtful element.
“There have been far too many loopholes in our hate crime legislation so far.
“We have seen individuals, organisations and groups use loopholes to incite hatred and those loopholes should be shut.”
In response, a Scottish Government spokesperson, said: “While the bill does create new offences of stirring up hatred to cover other characteristics such as religion and sexual orientation, ‘insulting’ is not included as part of the conduct that may constitute a criminal offence.”
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