SNP’s hate crime law activated despite fears over free speech

More than three years after receiving royal assent, Scotland’s “flawed” and “authoritarian” new hate crime act will finally be activated on April Fool’s Day, despite continued concerns it will have a chilling effect on free speech in the country.

More than three years after receiving royal assent, Scotland’s “flawed”, “dangerous” and “authoritarian” new hate crime act will finally be activated on April Fool’s Day, despite continued concerns it will have a chilling effect on free speech in the country.

Full details here.

Originally passed in 2021 by Holyrood, the Hate Crime and Public Order (Scotland) Act was pushed by the now-First Minister Humza Yousaf, who was then Justice Secretary, and broadens the “stirring up hatred” clauses of the Public Order Act 1986.

To help people interpret the new prohibitions, Police Scotland’s website describes a hate crime as “any crime which is understood by the victim or any other person as being motivated, wholly or partly by malice or will towards a social group”. Under the Act, offences will be considered “aggravated” if the offender demonstrates this subjectively perceived “malice and ill-will” towards the victim, and does so on the basis of the victim’s “membership or presumed membership” of a protected group.

As Iain Macwhirter points out for the Spectator, the purpose here “is clearly to criminalise speech which some minority groups find offensive or abusive”.

Unlike the Public Order Act, 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 people can be prosecuted for stirring up hatred in their own home, which raises the spectre of children testifying against their parents in court.

The Bill won the backing of a majority of MSPs in March 2021, despite concerns that the whole section on stirring up hatred was “fundamentally flawed” and represented an “attack” on freedom of speech.  

Activation of the legislation was then delayed while Police Scotland tried to work out how it could be implemented on the ground.

Two-and-half years later, in September 2023, the national police force set up 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, mushroom farms (no, really), 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 remains 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 if the police conclude no crime has been committed, they will record the report as a ‘hate incident (non-crime)’, the Scottish equivalent of non-crime hate incidents.

Given the extent to which Police Scotland is now gearing up for the activation of the Act, the obvious risk is that a disproportionate amount of police time will be diverted into policing robust but lawful ‘culture wars’ debates in the public square, with an over emphasis on investigating hurty words rather than criminal conduct. In a country where less than half of all crimes are solved, the number of reported rapes has soared to its highest level in six years, and the clear-up rate specifically for housebreakings stands at just 21.4 per cent, that’s hardly ideal.

According to a recent report from the Institute of Economic Affairs (IEA), for instance, the Act will “actively encourage politically partial prosecutions”, and “constrain the liberty of individuals to express their political views about homosexuality, gay marriage, transgender rights, and the beliefs and practices of other religions”.

In particular, gender critical feminists are concerned that anyone who dares to defend the need to exclude trans-identifying males from women-only spaces, or who objects to girls who are ‘boyish’ or attracted to members of the same sex being told they are ‘trans’, or who argues that gender reform conflicts with women’s sex-based rights, now risks being investigated by the police on suspicion of a ‘transphobic’ hate crime.

Speaking to the Scottish Daily Express, Helen Joyce, director of advocacy with Sex Matters, said: “Are we going to see teachers who say that boys who identify as girls can’t go into the girls’ changing rooms pursued by this new police unit? If ‘misgendering’ counts as a hate crime, then people who simply speak the truth risk a criminal record, and it is chilling to think that a dedicated police unit will be now pursuing people who are acting in the best interests of women and children.”