The SNP-led Scottish Government’s illiberal Hate Crime Act is now in force and its first day has not augured well for freedom of speech.
Contrary to previous claims that ‘misgendering’ would not count as a ‘hate crime’, Siobhian Brown, the SNP’s community safety minister, has now admitted on the Today programme that Scots could be investigated by the police for using the pronoun “he” when talking about a trans woman (i.e., a biological male). In correspondence with Holyrood’s Criminal Justic Committee, Police Scotland has also confirmed that one-third of its police officers have still not received training on the legislation, including its much vaunted ‘free speech protections’.
The Hate Crime and Public Order (Scotland) Act, which came into effect 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.
The law applies to all forms of communication, from spoken conversations to private WhatsApp messages, and since there is no dwelling defence, Scots will be liable for prosecution for things they say in their own homes. Penalties include fines and prison sentences of up to seven years.
Writing for the Spectator, Stephen Daisley says that this legislation “is born of elite paranoia about the general public”. He continues:
To politicians and civil servants, journalists and academics, third-sector bodies and activists, the masses are in the grips of every brand of racism and ‘phobia’ imaginable. Only through conditioning by law, policy and public information campaigns (see Police Scotland’s ‘Hate Monster’ and the Scottish government’s ‘Dear Transphobes’ advertisements) can the hate-filled hoi polloi be conditioned out of their bigotry.
These ruling class anxieties, which can be filed alongside ‘disinformation’ and ‘dark money’, are really expressions of unease with the increased democratisation brought by new technology, changing attitudes and evolutions in how the business of politics is conducted. And while these anxieties are common in elites across the West, in Scotland they coincide with a flawed parliamentary and governing system that is not fit for purpose. With devolution, power was concentrated in a strong executive, with the expectation that Scotland would continue to be the Labour fiefdom it had been since the 1960s. The Tories, for their part, came along and compounded the error by radically expanding the devolution settlement.
An overly mighty executive is dangerous enough in any political context, but in a country run by a tiny, middlebrow elite; prisoner to a suffocating progressive consensus; where civil society sees its job as echoing rather than challenging government talking points; and where the powerful face only limited journalistic or other scrutiny, it is a recipe for bad laws, poor policy, dire outcomes and a political sclerosis that serves the establishment by making reform impossible. It is, in short, how you end up with the Hate Crime Act.
I’ve previously argued for devolution reform, even though there is little chance of that ever happening. The consensus not only at Holyrood but among the dismal political, policy and commentary elites at Westminster is that the only kind of reform allowed is further expansion of the powers of the Scottish parliament. In fact, the reform needed is one that reserves to Westminster all matters of rights, equalities, and liberties so that, whether it’s regulating ‘hate’ or introducing ‘gender self-ID’ or banning desperate parents trying to save their offspring from gender ideology, there is one law across the UK, passed by a parliament that, for all its many flaws, boasts a higher calibre of talent and subjects them to more intense scrutiny than is seen at Holyrood.
Until that reform happens, we will continue to see a substandard parliament churn out substandard legislation with substandard scrutiny. As unwelcome as this kind of talk is in Scottish politics, where ever-greater devolution is close to a religion, the failure to confront these problems only gives fuel to those of us who have grown sceptical of the whole devolution project. It allows us to say, without fear of contradiction, that if there was no Scottish parliament there would be no Hate Crime Act.
Worth reading in full.
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. You can do so below.
Any money generated by this fundraiser between now and 31st March 2025 that we don’t spend on Murdo Fraser’s case will be spent on fighting cases related specifically to the Hate Crime and Public Order (Scotland) Act.
To provide FSU members with as much peace of mind as we can, we have an arrangement in place with a top firm of criminal lawyers in Scotland so we can assign a solicitor to FSU members who are arrested or questioned under caution because they’re suspected of committing a speech-related ‘hate crime’ (as defined in the new law), although whether we help them in this way, and whether we continue to help them after the first police interview, will be discretionary
Another benefit of joining the FSU is we can help you get NCHIs deleted from your record, as we just did with Conservative MP Rachel Maclean, who had an NCHI recorded against her after tweeting about the Green Party candidate in her constituency, a trans woman (on which more in a moment).
We will also be publishing an FAQs on what to do if you are contacted by Police Scotland, having been reported for a ‘hate crime’, shortly.
Any money left over in the fundraiser after 12 months will be transferred to our general funds.
In light of this new threat to free speech, we hope FSU supporters will consider becoming members by clicking the button below, particularly if they’re resident in Scotland.
