Let’s not become Scotland

The Law Commission has published a string of recommendations following its recent consultation on changes to hate-crime laws in England and Wales. As expected, the last one proposes that all existing hate-crime laws, as well as the new ones the commission would like to create, be swept up in a single Act of Parliament, much like the Hate Crime and Public Order (Scotland) Act. Readers will recall that this Act means freedom of expression is now in greater peril in Scotland than anywhere else in Europe.

In some respects, what the Commission is proposing isn’t as bad as the Scottish law. While it does recommend the scrapping of the ‘dwelling exception’, whereby people cannot be prosecuted for something they’ve said in a private home (one of the most controversial aspects of the Scottish Act), it suggests replacing it with a narrower ‘private conversation’ defence. It also proposes that various topics be ring-fenced so people cannot be prosecuted for expressing unfashionable opinions about them, including ‘cultural practices’, ‘policy relating to immigration, citizenship and asylum’ and the ‘view that sex is binary and immutable’. Finally, it recommends that journalists and broadcasters should not be prosecuted for ‘neutral reportage’ of other people’s unlawful speech.

No doubt these protections will deal with some of the concerns free speech campaigners have about the Scottish Hate Crime Act, particularly gender-critical feminists. But the problem is that specifying what subjects we are allowed to discuss freely in an Act of Parliament contravenes the common-law principle that we should be free to do whatever isn’t expressly forbidden by law. This is more like the Continental approach by which people are forbidden to do anything that isn’t explicitly permitted.

In other respects, the Law Commission wants to limit free speech further than in Scotland.