5 April 2024

🏴󠁧󠁢󠁳󠁣󠁴󠁿 Scotland’s new hate crime law

On Monday, the Hate Crime and Public Order Act came into force in Scotland. It criminalises “threatening or abusive behaviour which is intended to stir up hatred”, with a maximum of seven years in prison for those who fall foul.

What does it cover?
Age, disability, religion, sexual orientation, transgender identity and “variations in sex characteristics” are all protected – but not sex itself, which will supposedly be tackled by a separate anti-misogyny law. Any behaviour, online or offline, “that a reasonable person would consider to be threatening or abusive” can count as a hate crime – including that which takes place in the home. And while there is an exception permitting the “antipathy, dislike, ridicule or insult” of religion, there isn’t one for the other characteristics. It is, says Andrew Neil in the Daily Mail, “the equivalent of a modern, secular blasphemy law for the wokerati”.

How will it be enforced?
Concerned citizens can make tip-offs at more than 400 “Hate Crime Third Party Reporting Centres” across the country, including at university campuses, a Glasgow sex shop, a salmon factory in Berwickshire, and (until online ridicule meant it was removed from the list) a mushroom farm in North Berwick. Scottish police, who have promised to investigate every formal hate crime complaint, will then have the power to seize items like computers and mobile phones, turn up at the houses of the alleged culprits and compel them to be interviewed at police stations. Even if “McPlod” decide you aren’t quite hateful enough to be charged, says Neil, you could still be logged, without your knowledge, in a “non-crime hate incident (NCHI) database, to which future prospective employers could request access”.

Why have the SNP introduced the law?
The party clearly doesn’t care about the decline of Scotland’s once world-class schools – they’re now outperformed by English ones after years on top – or how the country has become “the drug-related death capital of the world”, says Neil. Instead, they obsess about social liberalism: under Nicola Sturgeon, the SNP introduced a bill allowing people to more easily change their legal gender, which was blocked by the UK government in Westminster. Devolution has handed political power in Scotland to a “tiny, middlebrow elite” that’s “prisoner to a suffocating progressive consensus”, says Stephen Daisley in The Spectator – it’s no surprise this “substandard parliament” is churning out “substandard legislation”.

What do the law’s supporter’s say?
First Minister Humza Yousaf has described criticism of the new rules as “disinformation” and insisted they include a “triple lock” protecting freedom of expression: an explicit clause on free speech; a defence for “reasonable” behaviour; and the act being compatible with the European Convention on Human Rights. He’s got a point, says University of Glasgow law professor James Chalmers in The Scotsman. The law consolidates and clarifies Scotland’s previous hodgepodge of anti-hate legislation, with the crime of blasphemy, last prosecuted in 1843, finally taken off the books. It’s also “less rushed and radical” than many claim: an offence of “stirring up racial hatred” has existed since 1965; this new Act just creates similar offences for other “protected characteristics”, but with the more stringent requirement of “proof of an intention” to stir up hatred – rather than this being just the “likely” result.

What do its critics say?
The provisions around transgender identity have concerned “gender critical” activists that their campaigns for the sex-based rights of women will be criminalised. On the day the law came into force, JK Rowling defiantly described a series of trans women as men on X. “I’m currently out of the country,” she continued, “but if what I’ve written here qualifies as an offence under the terms of the new act, I look forward to being arrested when I return to the birthplace of the Scottish Enlightenment.”

Will she be?
No, according to Police Scotland – but the wider implementation of the law is anyone’s guess. SNP high command are insisting it’s out of their hands. Asked on Radio 4 whether calling a trans woman a man was now a crime, the SNP minister for victims and community safety, Siobhian Brown, simply said it was “up to Police Scotland”. But the police themselves are only being given two-hour training sessions on the new law, and a third of officers haven’t even had that. Already over-stretched, senior officers worry that resources will be diverted from tackling violent crime to servicing a flood of hate-crime accusations, many of them malicious. Police Scotland has, at least, clarified that actors, comedians and other performers won’t be targeted.

Are there similar laws elsewhere in the world?
In England, less draconian hate speech laws are sometimes over-interpreted by law enforcement, with multiple gender critical activists interviewed by police in recent years. Ireland has its own stringent hate crime bill working its way through the legislature, which would criminalise the possession of content deemed “hateful”. And a report last year from the Future of Free Speech think tank at Vanderbilt University identified a global “free speech recession” under way among democracies. This includes the EU’s Digital Services Act and Britain’s Online Safety Act, which require hate speech and “terrorist content” to be purged from social media platforms; a similar proposed bill in Australia; and Denmark’s reintroduction of a blasphemy ban. France and Germany have both cited hate speech as a key reason behind their bans on pro-Palestinian marches.

So censorship isn’t just a left-wing issue?
Not quite. Though the British Tories aren’t going anywhere near as far as the SNP, says Hugo Rifkind in The Times, Rishi Sunak’s talk about hate speech on Gaza marches is worrying. There’s a lot of language on those protests I find “frightening”, but “I can think of very little that should be cause for prosecution”. Whatever our politics, we need to be wary of the inclination “to aim the crushing might of the law” at ideas and opinions we dislike. Otherwise, we’re likely “to stumble into Yousaf’s fiasco ourselves”.

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