Körero Whakamauähara : Hate Speech 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. • A protection of freedom of expression provision similar to that in sections 29J and 29JA of the Public Order Act 1986 (as outlined above) and section 7 Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (OBFTCA) should be included in any new legislation relating to stirring up offences. Section 7 of the OBFTCA expressly ensures the freedom to debate and express views relating to religion is protected. The Final Report provides a useful analysis of the merits of “stirring up offences”. The Final Report found that such offences recognise wrongfulness, harm, seriousness of the offence and their symbolic function.176 The Final Report was accompanied by an Academic Report177 which identified the direct and indirect harm which might result from hate speech:178 Direct harms are those that might result from members of the targeted community being exposed to hate speech. Indirect harms are those that might result from persons outside the targeted group changing their behaviour or attitudes towards members of the targeted group. The Scottish Government carried out public consultations in January and February 2019 to help inform the development of a hate crime bill, following the findings of the Final Report.179 In the consultation paper the Scottish Government considered that there was merit in considering whether stirring up hatred offences should be extended to other protected characteristics and asked for the publics views on this.180 It also asked whether the public agreed with Lord Bracalade’s recommendation that any new stirring up hatred offences should require that the conduct be ‘threatening or abusive’ and whether a protection of freedom of expression provision should be included, such as those in the Public Order Act.181 An analysis of the 1,159 consultation responses was published on 27 June 2019.182 The majority of organisations supported the introduction of new offences for all protected characteristics. They emphasised the importance of legal parity and clarity and thought laws of this type could protect all relevant groups while also respecting freedom of speech. In contrast, individuals and faith groups largely disagreed with laws protecting particular groups and/or they had concerns about the impact on freedom of speech and religious expression.183 Lord Bracadale, Independent Review of Hate Crime Legislation in Scotland – Final Report (Scottish Government, Edinburgh, May 2018). James Chalmers and Fiona Leverick, A Comparative Analysis of Hate Crime (July 2017) <www.consult.gov.scot>. As part of the review, Lord Bracadale requested two academics of the University of Glasgow to produce a comparative report detailing principles underpinning hate crime legislation and approaches taken to hate crime in a range of jurisdictions, known as the academic report. 178 At 69. 179 Scottish Government, One Scotland: Hate has no home here – Consultation on amending Scottish hate crime legislation Analysis of responses Final Report (June 2019). 180 Ibid. 181 At 43. Public Order Act s 29J “Protection of freedom of expression” states Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system. Section 29JA Protection of freedom of expression (sexual orientation) states: (1) In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred. (2) In this Part, for the avoidance of doubt, any discussion or criticism of marriage which concerns the sex of the parties to marriage shall not be taken of itself to be threatening or intended to stir up hatred. Lord Bracalade also referred to s 7 of the Offensive Behavior at Football and Threatening Communications (Scotland) Act 2012 - Protection of freedom of expression which states: (1)For the avoidance of doubt, nothing in section 6(5) prohibits or restricts—(a)discussion or criticism of religions or the beliefs or practices of adherents of religions, (b)expressions of antipathy, dislike, ridicule, insult or abuse towards those matters, (c)proselytising, or (d)urging of adherents of religions to cease practising their religions. (2) In subsection (1), “religions” includes— (a)religions generally, (b)particular religions, (c)other belief systems. 182 Scottish Government, One Scotland: Hate has no home here – Consultation on amending Scottish hate crime legislation Analysis of responses Final Report (June 2019) at [2]. 183 At [19]. 176 177 33