Has Holyrood EVER had more contempt for ordinary Scots? Saturday essay, by Stephen Daisley

People prosecuted for words uttered in the privacy of their own home. The police turned into a political harassment unit for fringe activists. ‘Hate’ records kept on law-abiding citizens who have committed no crime.

It might sound like something from the pages of Orwell or Kafka but dystopian fiction is now a lot less fictional in Scotland.

The Hate Crime Act came into force this week, the brainchild of Humza Yousaf from his time as justice secretary. The legislation, which crowns a quarter-century of Holyrood banning and nannying, is an audacious incursion into the spheres of conscience and expression.

A better title would be the Watch What You Say Act of 2024, for this sinister law is set to have a chilling effect on speech across a range of issues. By ‘speech’, I mean everything.

Anything you post on Twitter or Facebook. An email you send. A conversation in a restaurant, at a bus stop or over the phone. That private family WhatsApp group you’re in? It’s not private from this law.

It will cover columns I write and letters you write to this newspaper. Stand-up comedy routines, and even lines read by actors performing plays, will come under scrutiny.

And, yes, it will include conversations you have around your dinner table.

When the Bill was going through Holyrood, Humza Yousaf was asked why there was no ‘dwelling defence’.

That safeguard, present in similar legislation, protects you from prosecution for what you say in your home.

He said: ‘Are we comfortable giving a defence to somebody whose behaviour is threat­ening or abusive which is ­intentionally stirring up hatred against, for example,

Muslims? Are we saying that is justified because that is in the home?’

When Tory MSPs tried to add a dwelling defence, their amendment was voted down.

The Hate Crime Act comes forth in measured-sounding legalese but it is another glimpse at the face of woke totalitarianism, an imposition by progressive tyrants hellbent on cowing and criminalising every last word and idea they disagree with.

The Act creates a new offence of ‘stirring up hatred’ against a litany of ‘protected characteristics’. How many is a litany? This many: ‘race, colour, nationality (including citizenship), or ethnic or national origins… age, disability, religion or in the case of a social or cultural group, perceived religious affiliation, sexual orientation, trans­gender identity [or] variations in sex characteristics’.

Words or behaviour relating to race will be liable for ­prosecution if ‘a reasonable person’ would consider them ‘threatening, abusive or insulting’. Where an accused did not intend to stir up hatred, he or she can still be convicted if it is found to be a likely outcome.

For other characteristics, the standard is ‘threatening or abusive’ – insults won’t be enough – and the Crown will have to prove intent.

The right to attack and ridicule religious beliefs is written into the legislation, but there is no right to do the same with other categories like sexual orientation or transgender identity.

‘Transgender’, in the wording of the Act, is defined so broadly that it includes ­people who cross dress.

One protected characteristic left noticeably unprotected is sex. The Scottish Government is addressing that in separate legislation.

Under the Hate Crime Act, it will not be a crime to stir up hatred against women as a group but it will be a crime to stir up hatred against men who dress as women.

I am a live-and-let-live libertarian. Dress however you want and to hell with what the world thinks. But the criminal law has no place telling members of a free society what they can and cannot say about such practices.

An aversion to blokes in fishnet stockings may be stuffy and judgmental but it should not land you before the beaks. Which brings us to the matter of punishment.

We’re not talking about a slap on the wrist here.

If convicted in a sheriff court, you face a fine and up to 12 months in prison. If they drag you before a high court, you’ll be looking at a fine and as long as seven years inside.

Don’t delude yourself that this is all a fuss over nothing.

That, since the police no longer investigate all low-level crimes, they’re hardly about to open a case into every nasty remark.

That is exactly what they intend to do. As a Police Scotland spokesman said last month: ‘Hate crime and discrimination of any kind is deplorable and entirely un­acceptable and we will investigate every report.’

Supporters of the Act will tell you this is overblown. It is really just a legislative tidying up exercise, bringing together various provisions against ‘stirring up hatred’ on the basis of race scattered throughout the criminal law.

They will tell you there are already laws against stirring up religious or sexual orientation hatred in England. (What they won’t tell you is those laws only cover ‘threatening’ statements, not this Act’s looser ‘abusive’ standard.)

These commentators reckon we all need to simmer down and be responsible in how we talk about the law.

Oh really? The time for responsible was when Holyrood was passing legislation that will allow people to be lifted for drunken outbursts at dinner parties and ill-considered memes on WhatsApp and flung in the slammer for up to seven years.

We could have done with some responsibility back then. Progressives, be they politicians, legal types, or the NGO-activist complex, wanted this law. They pushed it. They backed it to the hilt. They won.

Now their law is in force and they will be judged on the consequences. If you’re in the business of diminishing people’s rights, the burden of allaying their fears falls on you, not the opponents and observers who tried to warn you against the whole ill-conceived endeavour.

The public is right to be alarmed by this legislation.

They need look only at the performance of the police lately to see where things are heading. In the fight against hate crimes, Police Scotland is not having a good war so far. Its advertising campaign, featuring a furry ‘Hate Monster’, was widely derided and later quietly deleted from the force’s website.

Its public information materials link hate offending to ‘young men aged 18-30’ who have ‘feelings of being socially and economically disadvantaged combined with ideas about white-male entitlement’.

Police Scotland wouldn’t dream of such crude racial profiling when discussing other offences and other demographics, but it is a very helpful insight into institutional attitudes within the force. When the organisation speaks in these terms, it is only to be expected that frontline officers will listen.

What bearing this will have on enforcement of the Act?

A young white man who is threatened, abused or insulted because of his race might wonder whether it is worth reporting the incident to a police force that sees him as the problem. Ideology poisons policing and ideological policing poisons the relationship between the police and the general public.

Not to worry, though, for they are making it as convenient as possible to report a hate crime.

Among the ‘third-party reporting centres’ where complaints can be lodged are a Borders caravan park, a Berwickshire smoked salmon factory and a Glasgow sex shop, where you can report a spot of racial hatred while browsing the Rampant Rabbits.

The thin blue line is worried, too. Police officers are getting just two hours of online training on the Act, which David Kennedy, general secretary of the Scottish Police Federation, says ‘doesn’t allow officers to ask questions or check their understanding in a meaningful way’.

Since this training, such as it is, only began in February, he reckons it ‘unlikely’ that all officers will have been trained yet.

The risks here are obvious. Police officers will be asked to enforce a law that has barely been explained to them. Overstretched and undertrained, there is a chance they will opt to overpolice rather than be accused of not upholding the law.

If that happens, there will be severely wrong calls that land innocent people in handcuffs.

Officers will be under additional pressure because of vexatious complaints. Rob Hay, president of the Association of Scottish Police Superintendents, warned: ‘We have a concern that individuals who could be described as the “activist fringe” of particular viewpoints will seek to “weaponise” the new legislation and associated police investigation.’

We can probably guess the ‘activist fringe’ he has in mind. It usually comes attached to green hair and sports a pronouns badge. By now we are all more familiar with the intricacies of the gender debate than we ever wanted to be.

Some feminists and others hold gender-critical views. That is, they believe the biological reality of sex is important and at odds with notions of ‘gender identity’.

Hardline trans rights activists cannot tolerate dissenting views and use every tool at their disposal to try to censor them.

This is why gender critics fear this Act. They suspect some of their more intolerant opponents will inundate the police with every tweet, blog and newspaper article they don’t like, claiming they are threatening or abusive.

They will be incentivised to do this by the police pledging to investigate every report received.

Bad legislation gives an opening to bad faith actors and this Act puts criminal law at the disposal of one side of the culture war.

Whether it’s the result of over­policing or politically motivated allegations, coming under investigation will be acutely distressing for anyone accused under the Act. If the alleged offence involved a social media post, for example, they would almost certainly have their phone or computer confiscated for evidence.

Police could hold these items for many months – for as long as they deem necessary, in fact. That means losing access to your contacts, email inbox, banking apps, personal photographs and the like. It would make no difference if you use said device for work. You would just have to make alternative arrangements.

With this we can see just how readily a vexatious complaint would disrupt someone’s life, perhaps even costing them their job, and undoubtedly affecting their mental health. After all this, it would be cold comfort to receive a letter months down the line informing you that no charges would be brought.

The damage would have been done and those activists prepared to use this tactic know that. As Joanna Cherry, KC, puts it: ‘The process is the punishment.’

Even if a decision not to prosecute is taken, a suspect could still find themselves documented in police files under ‘non-crime hate incidents’. This allows complaints to be recorded which do not meet the threshold of criminality but which the victim, or another ­person, perceives it to be motivated by prejudice. This process pre-dates the Hate Crime Act but is a product of the same histrionic mindset that sees haters behind every tweet the way Joe McCarthy saw reds under every bed.

As Home Secretary, Suella Braverman tightened the rules on ‘non-crime hate incidents’ so that officers only record them when it is ‘proportionate and necessary’ and not ‘trivial, irrational or malicious’. Those rules don’t apply in Scotland, which is why Conservative MSP Murdo Fraser recently learned that Police Scotland recorded as a ‘hate incident’ one of his tweets criticising the Scottish Government’s gender policy.

Officers of the Crown inputting the views of opposition politicians into a ‘hate’ database. Is it any wonder the public is alarmed?

The legislation is bad enough but the attitude behind it is just as pernicious. The progressive ruling classes, soldered to identity politics, motivated by status, gripped by authoritarianism, are all for the Hate Crime Act because they see it as a cudgel with which to subdue the masses and suppress the hateful tendencies they believe animate our every thought.

The legal moralists of yesteryear strove to make men virtuous with laws to discourage homosexuality, prostitution and pornography.

Legal moralism never went away; we just changed our ideas of virtues and vices. Today the great immoralities are racism and transphobia and progressive elites are as convinced as their reactionary forebears that law can chase wickedness out of men’s hearts.

Which leaves all of us with a choice. Do we fall silent and self-censor or do we stand our ground and say, like John Milton: ‘Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties’?

I’m with Milton. I intend to go on writing and saying what I think, whatever the consequences, until this freedom-squelching abomination is consigned to the legislative waste paper bin.