As reported in the Times, almost 1,000 new Scottish members have joined the FSU in the past fortnight, most of them women, and all concerned at the threat to free speech posed by the country’s draconian new Hate Crime and Public Order (Scotland) Act.
In response we’ve set up a Hate Speech Hotline in case any of them get into trouble with the police about something they’ve said. We’ve also put an arrangement in place with Levy & McRea, a top firm of criminal lawyers in Scotland, so if any of our members are arrested or interviewed under caution for something speech-related we can come to their aid.
Speaking to the Times about the work we’re doing to support our members, FSU General Secretary Toby Young said: “We felt we needed to put a hotline in place in case any of them get into trouble with the police about something they’ve said. If they’re arrested or interviewed under caution for something speech-related, we will do our best to get them a lawyer.”
The FSU is already supporting the Conservative MSP Murdo Fraser, who is considering a legal challenge against Police Scotland, which he claims has breached human rights laws, data protection laws and equality laws over its recording of a complaint against him as a hate incident. (You can find out more about Mr Fraser’s case here).
Neil Hay, of Levy & Macrae, said: “We are delighted to be appointed by the FSU to represent the interests of their members in this new and novel area of the law.”
The firm last year represented Joanna Cherry, the SNP MP, who was cancelled from performing at The Stand comedy club during the Edinburgh Fringe over her gender-critical views. The venue later apologised and reinstated her show.
If you’re an existing FSU member, you can find the Hotline number, as well as detailed instructions about what to do if you’re arrested in Scotland for a speech-related offence in the following set of FAQs
The Hotline number is also available to members in this separate set of FAQs, which answers questions about the new criminal offences created by the Hate Crime Act.
The Hate Crime and Public Order (Scotland) Act, which was activated on April Fool’s Day, broadens the offence of ‘stirring up racial hatred’, extending it to the protected characteristics of disability, religion, sexual orientation, age, transgender identity and ‘variations in sex characteristics’.
Putting aside race (which is handled slightly differently to the other protected characteristics) committing the ‘stirring up’ offence requires:
1) Behaviour or communication to another person of material that a “reasonable person” would consider threatening or abusive; and
2) Intention to stir up hatred against a group of persons defined by a protected characteristic.
As per the legislation’s protections for freedom of expression, it will not be deemed “abusive and threatening” to engage “solely” in “discussion or criticism” about age or any of the other protected characteristics.
Scots are also expressly permitted to voice “antipathy, dislike, ridicule or insult” for religion.
However, that carve-out does not apply to the legislation’s other protected characteristics, raising serious free speech concerns, not least for those who hold and manifest the gender critical belief that the category of biological sex must take precedence over a person’s ‘gender identity’ in policy and law.
Another free speech concern is that unlike the Public Order Act, which applies to England and Wales, Scotland’s hate crime legislation removes what’s known as the ‘dwelling defence’ (i.e., that an offence cannot be committed if both the defendant and the person threatened are in a private dwelling). This means that Scots can now be prosecuted for ‘stirring up’ hatred in their own home, which raises the spectre of children testifying against their gender critical parents in court.
The Bill won the backing of a majority of MSPs in March 2021, despite concerns that the entire section on stirring up hatred (section three) was “fundamentally flawed” and represented an “attack” on freedom of speech.
Activation of the legislation was then delayed while Police Scotland began the process of “training, guidance and communications planning”.
Two-and-half years later, in September 2023, the national police force established a dedicated hate crime unit to help identify, record and prosecute the new crimes created by the Act. It also began training its 16,400 officers in preparation for the Act’s activation.
A series of ‘third party reporting centres’ have also been established by Police Scotland, on the basis that victims or witnesses “sometimes… don’t feel comfortable reporting the incident to the police” and “might be more comfortable reporting it to someone they know”.
The nationwide network of walk-in snitching parlours are located everywhere from charities, council offices, caravan sites and housing associations – Glasgow’s easily offended can even drop-in to ‘Luke and Jake’, an LGBT+ sex-shop where specially trained staff are available seven days a week to help you report a ‘hate crime’.
Needless to say, the FSU is concerned that the new law will give officers carte blanche to question people for expressing lawful but dissenting, offensive or contentious views that those with particular protected characteristics – as well as the many activists who purport to speak on their behalf – happen to perceive as ‘hateful’.
We’re also concerned that any reported ‘hate crime’ that doesn’t meet Police Scotland’s criminality threshold will still be logged against the alleged perpetrator as a hate incident (non-crime incident), because the defining factor there is only ever the complainant’s perception of what happened. This information is sometimes subject to disclosure under an enhanced criminal records check.
If you’re concerned about the Hate Crime and Public Order (Scotland) Act 2021, and the number of innocent Scots likely to be get entangled in its net, please do consider donating to our newly established Scottish Fighting Fund.
And if you’re an FSU supporter and you live in Scotland, now might be a good time to join the FSU — prices start from just £4.99 a month.
