Roddy Dunlop
The QC Roddy Dunlop argued that protection against “stirring up hatred” could have a chilling effect.
Changes to hate crime laws threaten to criminalise comedians who tell the classic "Scotsman, Irishman and Englishman go to a pub" joke, a leading QC has claimed.

Roddy Dunlop, QC, vice-dean of the Faculty of Advocates, said plans to expand legislation to include "stirring up hatred" — as well as more protection for victims of prejudice on the basis of age, race, religion, disability, sexual orientation or gender — could impede free speech.

"How many stand-up comedians will feel comfortable telling any jokes if this law is passed?" he said. "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"

However, his comments have been dismissed as "scaremongering" by some lawyers, including Aamer Anwar, a leading human rights solicitor.

Mr Dunlop is the latest figure to raise concerns about the legislation. The police have highlighted flaws and the Scottish Catholic Church has warned that expressing its position on "marriage or human sexuality" may be seen as "an attempt to stir up hatred" under the new laws.

Police Scotland suggested that the legislation could be seen as an effective reintroduction of the deeply unpopular Offensive Behaviour at Football Act.

Behaving in a "threatening, abusive or insulting manner" or communicating "threatening, abusive or insulting material", that either intends to stir up hatred against a protected group or is "likely" to cause hatred, would become an offence. At present the law only references the incitement of racial hatred.

Mr Anwar said the new law had been designed to criminalise not free speech but behaviour that "destroys lives". "There's always a caveat with free speech and that requires you to act responsibly," he said.

"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."

Comment: That is likely a naive position.

"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."

Humza Yousaf, the justice secretary, was criticised for failing to understand his own hate crime bill after he repeatedly misquoted a core part of the legislation in parliament.

Mr Yousaf told MSPs on June 11 that a person's actions would have to be "abusive and threatening" for a prosecution to take place. The legislation contends for "abusive or threatening" — a lower threshold for conviction.

Nick McKerrell, a law lecturer at Glasgow Caledonian University, said clear public support was essential for the creation of new crimes.

"If you don't have public buy-in then you have to police it very strongly," he said. He added that there were effective examples of using new laws to "send a message" that society is changing.

"Domestic violence was not prosecuted in Scotland for a long time," he said. "It was not a criminal offence for a husband to rape his wife until 1989. Now domestic abuse in relationships is largely recognised by criminal law."

Mr Anwar said: "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."

A Scottish government spokesman 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."