Scotland's Hate Crime Act

Echoes of 'It's a Knock-Out"

It’s an ill wind that blows nobody good. Scotland correspondents battling for a slot on the flagship evening news shows, columnists defending free speech, and cartoonists looking for an eye-catching image have all benefitted from the Hate Crime row.  From Le Monde to the New York Times, Scotland made top billing on the news stands in the last week or so (the NYT wins the prize for the most error-laden report (*). On social media the famous line from Scottish detective show Taggart ‘There’s been a mur-dur’ was replaced by ‘There’s been a misgendering’. Protestors outside Holyrood brought a coffin to mark the death of free speech. Pundits pontificated from Calton Hill in front of a grey but still beautiful Princes St. In the the context of everything else that is happening in the world, I’d say it has provided pretty good enterntainment for many - sort of a culture wars ‘It’s a Knockout’. It has also probably added a measurable amount to the economy. 

Spectator front page

The front page of the Spectator has a Saltire crossed over a woman’s mouth - silencing her. In the accompanying piece, Lucy Hunter Blackburn, unlike many writers, did not misrepresent the Act - but she essentially moved the cause for concern onto the potential chilling effect and reputational damage that could be caused by heavy-handed policing of complaints. Many were anticipating a forensic tent outside JK Rowling’s place - including the famous author herself perhaps. The police were expected to roll in with a warrant to search it after she issued a series of gender-critical tweets timed to coincide with the April 1 implementation - but Police Scotland said later that these weren’t illegal. It appears the police have read the actual Act as opposed to media misinterpretations of it. 

There has been a lot of misinformation about the Hate Crime Act. Simon Jenkin’s piece in the Guardian was amended online after he misquoted it - albeit with a confusing and slightly disingenous ‘sorry not sorry’ correction. He was not the only one. The New York Times also carried the assertion that the law crimilises ‘abusive, threatening or insulting’ behaviour - it actually doesn’t; that is a partial quote of a three step bar that only appies to race anyway. Lots of papers - step forward the Washington Examiner -  made the same semi-literate-in-law mistakes.  There has been some good coverage of this too however - professor of public law and former Conservative MSP Adam Tomkins wrote this elegant explainer in the Herald. 

In summary, Tomkins wrote that, since 2008, England has had “stirring-up hatred’ laws in relation to race and sexual orientation. Now Scotland has these too - but ours also include age, disability and - here is the crux - transgender identity. Within the law, there are three distinct categories of protection - the lowest is for religion, the highest is race and the middle category has all the other protected characteristics. Breaking the midle tier level requires that offending behaviour has to be ‘threatening or abusive’ (insulting is excluded), AND that the person intends to stir up hatred against a group AND their actions have to be unreasonable in the circumstances. 

The new law came out of a judicial review of existing law on this in 2018 by Alastair Campbell, Lord Bracadale, and the Bill that emerged was supported by all the major parties in Holyrood except the Conservatives. But of course, there are concerns. The Hate Crime Act is an add-on to the existing law of ‘aggravations’ - and these are still likely to be the main way that this area is policed. 

These say that an offence like a breach of the peace is aggravated where there is an additional element of prejudice. A friend who works in the courts says these are already common - the wee nyaff being done for resisting arrest is generally heard to have shouted ‘’you large gay” or an equivalent insult at the arresting officer. These remarks are offensive. But what are we actually asking the courts to do?  Are they supposed to add a couple months on at the end of every eejit’s sentence?

Scotland’s prisons are overflowing. We jail more people per head than almost anywhere else in Europe. Fining people doesn’t work as an alternative - because many of those caught in the justice system lead chaotic lives made more complex by drug and alcohol addiction and they don’t pay fines which are then translated into jail time. So it may be offensive and hateful for a policeman breaking up a drunken brawl to be called - insert your aggravator here - but we are potentially just pushing one more social problem onto a criminal justice system that is already overloaded. 

The bar for breaking the Hate Crime Act is much higher than it is for breaking these existing laws. The controversial thing about it is that it includes transgender identity and that puts it right in the culture wars front line. In fact, gender-critical feminists don’t usually make the kind of remarks that would break this law - the example often given is someone calling for all transgender people to be shot or something like that. So it is not likely that JK Rowling or Joanna Cherry or any of the other high-profile women who are involved in this spat are going to break it.  There are legitimate concerns of course about the potential damage of over-weening investigation by Police Scotland. A current example of the damage this can cause is the investigation into the SNP’s finances. It has rumbed on for close to three years and the police are still refusing to report to the Crown - in all probability this will overshadow the general election, even if no charges are ever laid.

There are also legitimate concerns about this and the other similar laws coming down the tracks - there is a consultation ongoing about a bill to ban ‘conversion therapy’ which is defined in a newly-sprawling way, and misogyny after that. Some people are going to fall foul of the Hate Crime Act and these other planned laws. As Kevin McKenna has been pointing out in his Herald columns on this, the people at the cutting edge of this are going to be - of course -  the usual suspects.They will be those living in the deep pockets of poverty and deprivation that remain all over Scotland, where people seek to absent themselves from despair through drink and drugs. These are the folk who will find themselves in the dock - and then the jail. Breaking the Hate Crime Act carries a penalty of up to seven years. Scotland needs to find better ways than jailing the poor and marginalised to show how progressive we are. 

• * A late entrant to the competition for misleading and erroneous reporting of Scotland’s Hate Crime Act is the Financial Times Camilla Cavendish, in an article subtitled “Scotland’s new Hate Crimes Act is an Orwellian nightmare”. She wrote: “The Scottish puritans who burnt almost 2,500 women at the stake were probably of the same stock as the fanatics who settled in Salem Massachusetts, Miller’s setting for his brilliant attack on McCarthyism.  I was reminded of all this when Scotland’s Hate Crimes Act came into force two weeks ago. The act bans “stirring up hatred”, criminalising words that are considered insulting even if they cause no actual harm. Offenders can be jailed for up to seven years. Citizens are urged to dob in their neighbours at Orwellian reporting centres.” This is pretty misleading. As we have already explained, England has stirring up hatred laws already. The new law doesn’t include ‘insulting’ except as part of a provision applying only to race, which is actually already law in any case. The reporting centres Cavendish mentions have been in place for a while - they include for example, a sex shop where the idea is that sex workers may be able to go to report crimes against them to trained workers who can then communicate with the police.

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