Scotland’s Hate Crime Act (HCA) has, by common agreement, been an unmitigated disaster, writes Iain Macwhirter for the Spectator.
Less than a week old, there are already calls for it to be repealed. The police have been swamped with thousands of complaints, many vexatious, all of which they are pledged to investigate. JK Rowling has blown the doors off with her ‘arrest me’ tweets, but the First Minister, Humza Yousaf, attracted more hate crime complaints in the first two days than she did. SNP Ministers like Siobhan Brown have been ridiculed for misrepresenting their own law.
“So it may come as a surprise that I now think the HCA may have been a rather good thing,” Macwhirter writes. “Indeed, it may inadvertently have liberalised free speech and exposed the progressive authoritarians who seem who dominate political life in Scotland.” He continues:
The police are now clearly hesitant of arresting anyone for hate crime in case it becomes a huge public row and leads to court action by women’s groups.
We also now know that ‘offensive and insulting comments’, as Humza Yousaf described JK Rowling’s rather shocking tweets, are not illegal. That’s actually a step forward.
There is little doubt that if Rowling’s tweets of a rogue’s gallery of trans sex offenders had, in the past, been posted perhaps by someone less prominent and combative it would, at the very least have led to police recording a non-crime hate incident and very probably an attempt at prosecution. Not now. Police Scotland said no hate incident had been recorded.
It is thanks to the HCA that ordinary people in Scotland are now aware of the existence of these Orwellian ‘non-crime hate incidents’ which can be tagged to your name without your knowledge. Contrary to what we have been told, even by some police spokespeople, these are searchable in what are called ‘Enhanced Disclosure’ background checks when you apply for a job in the public sector. The Tory MSP Murdo Fraser, who found that he had been logged with a hate incident for comparing identifying as non-binary to ‘identifying as a cat’ is furious that the police have not similarly tagged Humza Yousaf. The recording of hate incidents is now such a scandal that Police Scotland have had to indicate that the recording of them is to be reviewed, as it has been in England.
Finally, the HCA has boosted Toby Young’s Free Speech Union, which has attracted 1,000 new members this week. The FSU is installing a legal hotline for people who are fingered by police over hate crime. This is an unalloyed good thing for supporters of freedom of expression. The experience of the HCA will hopefully ensure that no similar law will be introduced in England under Labour – though regrettably the Scottish Labour leader, Anas Sarwar, says he does not support its repeal in Scotland.
Worth reading in full.
As Iain says, in response to the activation of this new law, the FSU have set up a Hate Speech Hotline in case any of our Scottish members get into trouble with the police about something they’ve said. We’ve also put an arrangement in place with Levy & McRae, 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.
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’.
