The Most Hate-Filled Country in the World
Scotland's hate crime act is a calamity because the government and the police have made it so.
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This is a poster that may now be seen plastered on advertising hoardings across Scotland. It helps explain just how and why Scotland - plucky little Scotland - became the most hateful small country on earth. This, long-memoried readers will recall, is at least a novel spin on Jack McConnell’s aspiration that Scotland should aspire to be “the best small country in the world”. McConnell - the last but not the final Labour first minister - was much mocked for that slogan on the grounds that it was simultaneously naff and twee and, more quietly, obviously unattainable.
The introduction of Scotland’s new hate crime act, passed three years ago but delayed until this month, has become an example of how not to manage political communications. Public affairs agencies will use it as a warning: look at Scotland, don’t be like Scotland.
In the last week Police Scotland have received more than 8,000 reports that a “hate crime” has been committed. The vast majority of these may safely be filed as “Someone said something I do not like”. This was entirely predictable because the mismatch between what the law does and what politicians and the police have encouraged people to believe it does is so profound it is all but beyond repair.
A quick recap: the hate crime act affords protections to particular characteristics: age, disability, race, religion, sexual orientation and transgender identity. When a crime - a proper crime, that is, not one of speech - is committed it may be aggravated if it is motivated, in whole or part, by prejudice against any of these protected characteristics. The vast majority of “hate crimes” that will come to court will fall into this category.
But the law also creates new offences of “stirring-up hatred” against any of these protected groups. In these cases, the test is whether a “reasonable person” might think the accused’s actions were “threatening or abusive” (or “insulting” in the case of racial hatred, an offence which has been on the books for many years) and that they were “intended” to stir-up hatred. Proving this will not be easy.
The government is caught in a cleft stick of its own construction. On the one hand, Humza Yousaf, the first minister, declares that the act is required to combat “the rising tide of hatred” threatening Scotland; on the other, the Scottish government declares very few people are likely to be charged with the new offences. The act is simultaneously essential and just for show.
We know this because a) we have the data which shows there is no rising tide of hatred and b) because the government has told us not to expect many prosecutions. Despite that, it is doing all it can to encourage people to shop their enemies and neighbours (sometimes these are distinct groups).
First, the data:
An increase, yes, in cases involving sexual orientation but this is more than offset by a significant fall in reports of race-related “hate crime”.
Second, it is worth recalling what the Scottish government said about its own proposals when the bill was introduced to parliament four years ago:
“In assessing the impact of the creation of the new offences, it is important to bear in mind that in many cases conduct amounting to the stirring up of hatred can already be prosecuted in Scottish courts using existing laws. The new offences will more accurately define the conduct in question (which is a key policy driver for creating them), but it is the case that the conduct in question would already constitute existing criminal offences such as breach of the peace or threatening or abusive behaviour.
Based on these figures, and understanding that the new offences under section 3(1) and 5(1) criminalise conduct that is already criminal under existing laws, creating new offences relating to stirring up hatred under section 3(2) and 5(2) involving hatred based on age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics (and any new characteristic of sex) is not likely to result in a large number of additional cases being dealt with [by] the criminal justice system.”
Emphasis added. At best, then, the new act is of questionable necessity. But its introduction and the public information which has accompanied it does something else: it most likely encourages the taking of offence, the thirst for victimhood, and, ultimately undermines the social trust essential for the “cohesive” society the government champions.
When the government and the police tell citizens they must be in a state of constant vigilance, forever aware that hate crimes may be being committed, they should not be surprised by the consequences of putting people on high alert. And when you set up a network of hundreds of “third-party reporting centres” where people may make complaints, and when you further allow complaints to be submitted anonymously online, you really forfeit the right to be surprised by what happens next.
But they are surprised! Patrick Harvie, co-leader of the Scottish Green party and a government minister, told the BBC at the weekend that the public had been hoodwinked by malign forces and actors. The hate crime act was itself a victim of “deplorable levels of misinformation”. This was consistent with Yousaf’s deplorable intimation that anyone concerned by the act is in some appalling sense in favour of hatred and bigotry.
Nor is it just politicians who think the act has been thoroughly misunderstood. The journalist David Leask tweeted that, look, “I think we should collectively declare a ‘misinformation event’ over Scotland’s hate crimes legislation”. He has a point, though it is not quite the one he appears to think it is.
It is true that even by the (low) standards of Scottish politics, few pieces of legislation have inspired quite so much overblown and mistaken commentary as this one. Much, though not all, of this has come from south of the border (it should not surprise you that The Guardian’s Sir Simon Jenkins failed to understand the law, for instance).
So this is my baseline: It is not a good act but nor is it quite the “Orwellian” nightmare depicted in so many op-eds published in the past fortnight.
The bill that was passed was a significant improvement on the bill first presented by Humza Yousaf - always present whenever there is a calamity - during his time as justice secretary. Those initial proposals really would have justified much of the opprobrium the actual act has attracted. For once, Holyrood’s committee system did at least some portion of its job: improving legislation and, in the process of doing so, rescuing it from its sponsors.
That is not to say it is a good act or even, in my view, a necessary one. Yousaf asks his critics to consider a thoroughly disreputable question:
“I've asked this question of many people who've opposed the act: ‘Can they give me an example of behaviour that is threatening or abusive and intends to stir up hatred that they don't think should be prosecuted?’ And no answer comes.”
Of course it doesn’t and for the very good reason that the definition of all these terms is precisely the issue at hand. At the same time, the first minister cannot offer examples of truly egregious behaviour that could not have been prosecuted last month but can be now.
Speaking on Radio Scotland, Siobhian Brown, the minister for victims and community safety - a pleasingly Jacobin title - suggested that “misgendering” a trans person might indeed be a criminal offence. At the very least, it was something for the police to decide. She couldn’t say. As a great Scottish jurist (Kenny Dalglish) put it: “Mebbes aye; mebbes naw”.
When politicians cannot say what the law they voted for is, why should the public be expected to know what it is? Brown further clowned herself by suggesting newly-criminal behaviour had to be “threatening and abusive” rather than, as is actually the case, “threatening or abusive”. This distinction may be too subtle for a government minister but it still matters.
And, again, the first minister gave the game away himself:
“The thresholds are very high, freedom of expression protections are embedded within the bill and of course police have clarified they're not going to be targeting comedians or playwrights as has been suggested by some who spread disinformation.”
I have added emphasis there but let me suggest that if the police have to clarify that, despite training materials suggesting otherwise, they are not teaching their officers how to spot hate crimes on stage then, yes, your government and your police force has a communications problem.
That is further underlined by the advertising campaign referenced above and by the suggestion Police Scotland were training “500 Hate Crime Champions” in advance of the bill’s implementation. That is one officer for every 10,000 Scottish residents. When the police act like this, ordinary citizens are entitled to assume that the new hate crime act must be cast extremely broadly.
Consider the definition of “transphobia” adopted by the SNP’s national executive committee four years ago. Among other provisions, it states that transphobia is: “Deliberately misgendering someone or using phrases or language to suggest their gender identity is not valid, for example referring to a trans woman as a ‘biological man’”. Anyone “Deliberately using a trans person’s previous name instead of or alongside their current name without their consent” is also guilty of transphobia.
Now clearly this has no bearing on the law but since trans activists (in this case) often believe that “misgendering” is an “abusive” act, who can blame them for thinking that deliberate misgendering might be precisely the kind of “threatening or abusive” behaviour “intended” to “stir-up hatred” that is covered by the new act?
And if trans activists might reasonably think that, why shouldn’t so-called “gender-critical feminists” come to precisely the same conclusion? One group might welcome this and the other fear it but each, it seems to me, had ample reason to wonder if the new laws might be applied to this sort of behaviour.
Once again, they were encouraged to think this by the police themselves. According to Police Scotland, a hate crime is “Any crime which is perceived by the victim, or any other person, as being motivated, wholly or partly, by malice, ill will or prejudice against a social group”.
This does not in fact define what is, and is not, a crime but that is neither here nor there since, more importantly, it plainly encourages people to believe the act is much more broadly drawn than it actually is. If the police are fostering this impression, why should citizens be expected, or even required, to discount what the police are saying for the very good reason the coppers are talking through their hats?
As it happens - and here we may enjoy a pleasing irony - if we were to accept the SNP’s definition of transphobia we must conclude that the first minister is guilty of transphobia himself. Yousaf has previously suggested that Isla Bryson, the double rapist formerly known as Adam Graham, is not the woman he claims to be. Bryson, Yousaf says, is “at it”.
It should be noted that Bryson, like some other non-representative trans people, only discovered his trans-ness after he was charged with rape. Nevertheless, this was no impediment to housing him in a female prison, a decision only rescinded following a storm of controversy and public protest.
Awkwardly, Bryson’s right to identify as he pleased was facilitated by the gender recognition reforms for which Yousaf, like a majority of MSPs, voted. The Scottish parliament decreed that it was wrong - and by implication hateful - to prevent people from declaring their own gender-ID without the need for medical diagnosis or any other form of significant appraisal. Adam Graham became Isla Bryson and this new reality should be respected because Isla Bryson demanded it. To deny this was to “deadname” him and be guilty of “transphobia”.
At which point we are required to conclude that if we accept the SNP’s own definition of transphobia, reality itself is transphobic. Can reality be a hate crime in itself? We were certainly not discouraged from thinking so.
Moving down the ladder of offence, we are now asked to accept that even if it is (regrettably) not criminal to refer to someone as a “biological man” it is undoubtedly unkind or hurtful to do so. Yousaf suggests that JK Rowling’s remarks on this subject are “deeply offensive and upsetting” even though, on the specific matter of Isla Bryson, she appears to be guilty of agreeing with Humza Yousaf himself.
This is how we arrive at the preposterous situation in which we now find ourselves: it is wrong to say things which are true precisely because they are true. That is not something yet sanctioned by the criminal law but it is a more worrying development than anything contained in a hate crime act that, though neither good nor necessary, is not quite so bad as some of its critics aver.
Such are the consequences, though, of passing laws on the basis of vibes.
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Excellent analysis of a bad law. For me, one of its worst features is that the accuser of a hate crime can remain anonymous. So the alleged hate utterer has no means of knowing he/she has been accused of a hate crime until they have a visit from Police Scotland or discover that they cannot apply for that charity work they cherished.
A very good analysis of the infuriating inconsistencies not just within the commentary by police and politicians but within the Law itself!
Needless to say there has been a rash of overblown (and under-informed) press articles on this, but given the muddled 'roll out' of the Act, that is not surprising.