Scotland’s new Hate Crime Act is fraught with danger

If you live in Scotland, you may have seen the ‘Hate Hurts’ adverts from the Scottish government. The government is worried about, as another police advert put it, the things Scots might say ‘to a neighbour, somebody on the street, on a night out [to a] security guy at the door’. If you lose your temper, then ‘before you know it, you’ve committed a hate crime’. Police in Scotland have just been given sweeping new powers to crack down on such crime.

The Hate Crime and Public Order (Scotland) Act was passed three years ago, but it has been delayed as the authorities prepare for what’s to come. It finally takes effect from 1 April. The offence of ‘stirring up racial hatred’ will be extended to disability, religion, sexual orientation, age, transgender identity and ‘variations in sex characteristics’. Scotland’s ancient blasphemy law, last invoked in 1843, is abolished by the Act. But with the extension of ‘stirring up’, a modern blasphemy code is being put in its place.

The new law gives few assurances for protecting freedom of speech: there’s a small caveat for religion, but not for what have become known as gender-critical beliefs. Those who campaign against gender self-ID fear they will soon be reported to the police. Joanna Cherry KC, a Scottish Nationalist MP, has said she has ‘no doubt’ that the law ‘will be weaponised by trans rights activists to try to silence, and worse still, criminalise women who do not share their beliefs’.

Those activists are preparing to strike. Rajan Barot, a former fraud prosecutor for the CPS, has warned J.K. Rowling, who lives in Edinburgh, that her old posts on Twitter ‘most likely contravene the new law’ and advised her to ‘start deleting’. She replied that she will not be expunging anything: ‘If you genuinely imagine I’d delete posts calling a man a man, so as not to be prosecuted under this ludicrous law, stand by for the mother of all April Fools’ jokes.’

The law doesn’t just apply to social media posts or newspaper articles. It covers anything said anywhere – even in your own home. Children will in theory be able to report their parents. Scots can inform on each other anonymously, through an expanded network of ‘third-party reporting centres’. The list of centres includes a striking number of university campuses, as well as a Glasgow sex shop and a North Berwick mushroom farm.

It will not be deemed abusive to engage ‘solely’ in ‘discussion or criticism’ about age or any of the other new entries on the list. It is expressly permitted to voice ‘antipathy, dislike, ridicule or insult’ for religion, but – pointedly – not for the other categories on the list. So what if you ridicule police who refer to male rapists as women? That’s anyone’s guess. The Act says that Scots still have freedom of expression under the European Convention on Human Rights (well, thank you), but the fact that this needs to be said shows the legislation’s architects have doubts about its internal clarity and likely effects.

The Act is part of the legacy of the Nicola Sturgeon era (when gender self-ID was also promoted, before it was struck down by Westminster). It was passed by First Minister Humza Yousaf when he was justice secretary. There was no threat to freedom of expression, he insisted. ‘Solely stating a belief which might be offensive to some people does not breach the criminal threshold,’ he said. ‘Through the legislative process, we have created offences that – rightly – have a high threshold of prosecution.’

When MSPs stressed that all this would need to be made clear in police training and by the public information campaign, he nodded along. But that campaign, now at last under way, seems to give the new law a far broader remit.

‘Words can hurt and can have a detrimental effect on how someone feels about themselves,’ reads the Scottish government’s campaign material. ‘Other people might go “it’s nothing, it’s just a few words”. It’s not nothing. It’s a painful and difficult event to go through.’ Are ‘painful’ words to be outlawed? Or just hateful ones? Where and how is the line to be drawn?

The way the law will be enforced will come down to police guidance, which remains secret. We have had anxious hints, leaks and whispers from frontline officers who have their own concerns about what lies ahead. The main training resource is a two-hour online course which is ‘not fit for purpose’ according to David Kennedy, general secretary of the Scottish Police Federation. ‘We are asking officers to police a law that they are unprepared for,’ he says. ‘That’s where mistakes will happen.’ He regards the whole project as ‘a recipe for disaster’. One of the leaks from Police Scotland training shows that comics and actors may be in trouble. The guidance tells officers that ‘threatening and abusive’ material can be communicated ‘through public performance of a play’.

Last week, Police Scotland promised Murray Blackburn Mackenzie, the group of policy analysts to which I belong, that we could see the core training package before 1 April. This viewing has been pushed back until after the Act is in force. The country is, even now, still in the dark.

Before the law was passed, Yousaf promised critics that he would at least give them some input into the post-legislation process. ‘We are in listening mode,’ he said. He shamelessly and unapologetically broke his promise. The Scottish government has instead adopted a bunker approach and locked itself in a room with its allies.

So as far as anyone can tell, a person who is accused of hate speech, fairly or not, stands a good chance of being investigated by Scottish police. And even if their comment is judged not to be a crime, it is still recorded as a non-crime hate incident (NCHI). Police in England have been told to strike from the record complaints that are ‘trivial, irrational, or if there is no basis to conclude that an incident was motivated by hostility’. Twitter spats over gender are offered as an explicit example of what England’s police have no business getting involved in. There is no similar guidance in Scotland.

Scottish police are bracing for the new workload at a time when there is a general crisis in resources. Earlier this month, Police Scotland announced a new ‘proportional response’ strategy that in effect said they will not investigate what they regard as minor crimes: smashed home windows, for example, or thefts not captured on a security camera and which are therefore hard to solve. It is estimated that this change in approach will lead to 24,000 fewer investigations a year, saving 130,000 police man-hours.

There is another uncomfortable and important aspect to how the police are approaching the law. According to Police Scot-land, the people most likely to commit hate crimes are young men with ‘deep-rooted feelings of being socially and economically disadvantaged, combined with ideas about white-male entitlement’. It sounds like a long-winded way of saying ‘white working-class’. Other characteristics of likely hate criminals, the police say, include ‘adverse childhood experiences’, ‘substance abuse’ and ‘underemployment’. In other words, people trapped in the type of poverty all too prevalent in modern-day Scotland. ‘Those who grow up in abusive environments can become addicted to conflict,’ explains the hate-crime campaign literature.

Leaving to one side the offensive stereotyping, if this is what the governing class of Scotland believes, then where are the accompanying announcements of plans to help these likely offenders? Local councils have already fared poorly from recent Scottish budgets and are facing further massive cuts, so the help such communities need looks less likely to be given than ever. The SNP’s vision appears to be that you should build a more tolerant society by calling the police.

Things will go wrong with this Act, as is inevitable when there are attempts to crack down on a problem that is not properly defined. The odds are that clarity will be provided in the end by judges asked to balance Yousaf’s law against freedom of expression with the Human Rights Act. But this will take months, perhaps years. Until then we can expect a deluge of complaints and many people will be subjected to varying levels of disruptive police attention for their legitimate and legal thoughts and arguments. Many more will have thought twice about what they say to avoid a knock on the door.

People across Scotland are now discussing whether they should be deleting their old WhatsApp chats, for fear they may be being dredged for evidence of ‘hate’ against a threshold which they have no confidence will always be applied ‘reasonably’.

‘It is technically impossible to write an anti-speech code that cannot be twisted against speech that nobody wanted to bar,’ said the US civil rights activist and Democratic congresswoman Eleanor Holmes Norton. ‘It has been tried and tried and tried.’

The question is who will be the collateral damage after 1 April. It seems likely that women who believe sex is real and unchangeable will be some of the first in the firing line – as will be those in Scotland’s most disadvantaged communities.

The Scottish government is right about one thing: words do matter. That’s why governments should use words carefully, in legislation and in publicity campaigns, so that we can all be as clear as possible about the boundaries of the law.