Scotland’s proposed new law goes far beyond hate speech and sets out to silence all debate, discussion and criticism of protected groups.
It’s almost predictable that the announcement of new restrictions on ‘hate speech’ will be met by concerns about infringements on free speech. And it’s almost as predictable that such concerns will be dismissed by those proposing and supporting the restrictions as the whining of a bunch of deplorables, upset because they won’t be allowed to spew racist, sexist, homophobic, transphobic or whatever else -ist and -phobic viewpoints the new rules set out to tackle. The supporters of ‘hate’ restrictions tend to have the sympathy of the media and so, by default, the public. After all, what sort of scumbag supports hate speech?
So when a new government bill attracts criticism and concern from not only the usual collection of libertarians and free speech absolutists – people like us, basically – but also Left Wing groups who are usually all in favour of clamping down on isms, liberal comedians and even police forces, then you know that there is definitely a problem with it. So it was some years ago, when the British government proposed laws that would clamp down on religious ‘hatred’ so much that any sort of criticism or mockery would be seen as potentially illegal, and so was effectively a new blasphemy law by the backdoor. The government finally watered down the restrictions – not far enough, it must be said, but to the point where you could still theoretically take the piss out of religious organisations without breaking the law.
And so it is with the Scottish government’s Hate Crime and Public Order bill, which is working its way through the Scottish Parliament without any sign of even being given and significant scrutiny by MSPs. The new bill aims to replace outdated blasphemy laws (still in force in Scotland years after being abolished in the rest of the UK), but actually extends the list of people who can demand legal action if they are offended considerably. The bill covers ‘hatred’ driven by race, colour, nationality, age, disability, religion, sexual orientation, transgender identity or ‘variations in sex characteristics’. Sex and gender are not yet covered, but could be added later. Now, on the face of it, that might not seem too awful – after all, we already have legislation in place that allows for hate speech against assorted protected groups to be shut down, and seen as a contributory factor in crime and sentencing. But the proposed bill goes way beyond actions and strays into thoughts. Way beyond incitement and into opinion.
Sat at the heart of the bill is the offence of ‘stirring up hatred’, which means it would be an offence for someone to behave in a ‘threatening, abusive or insulting manner’ – and you can probably see which of those words is problematic, especially as the law specifically allows for the complainant to decide if they have been insulted or not – and applies not only to individuals but to entire groups, both as offender and offended. If you were, say, Negativland, and wanted to play your popular song Christianity is Stupid at a Scottish gig, just one offended Christian in the audience – or, in fact, not in the audience at all – could complain to the police on behalf of all Christians, and you would have broken the law; not just the band, but the venue that allowed you to perform as well. this isn’t an exaggeration – an entire section of the law covers ‘the performing of a play’, and so even contextualised performance would not be exempt. Intent counts for nothing; context counts for nothing. The perception of the insulted is all, and we know that there are a lot of people out there who are determined to find every criticism, every disagreement to be a violent attack on who they are. This law is a gift to both self-proclaimed victims and all those who want to close down debate over what are often very controversial issues.
The law also covers possession of inflammatory materials – books, records and the like. No matter if these are only enjoyed in the privacy of your own home, and no matter what legitimate reason you might have for owning the material (unless, weirdly, you wish to ‘alert a journalist’ to the contents). As some have suggested, this puts books like the Bible and other religious tracts on thin ice, but will also cover huge amounts of art and literature that is not suitably Woke. It also opens up the can of worms known as thought crime, which is why the Scottish police are so concerned. While police forces across the UK seem ever more keen to arrest people for making intemperate comments on social media, nicking them for owning a dubious book – or perhaps even reading a dubious article online – seems a touch excessive. And again, the law isn’t just aimed at individuals – should a public or university library be carrying a forbidden book, then that institution will have broken the law. Educational purposes are not listed as an exemption.
Criminologist Stuart Waiton has called it “possibly the most authoritarian act in any liberal democracy across the world.” He’s not wrong. SNP Justice Secretary Humza Yousaf has said that the bill “does not undermine free speech”, in that slippery way that only people who are determinedly undermining free speech can manage. Another statement, in which he said that “free speech itself is never an unfettered right” perhaps reveals more about his thinking. Yet despite criticism from the police, civil liberties groups, comedians, journalists, Nicola Sturgeon’s former law professor, Christian organisations, the Law Society, Bishops, secularists and other MSPs, the SNP seem determined to push this law through. With the help of their Green Party allies, they will probably succeed. There is time to change it, but there seems no inclination to do so, even slightly.
Given all the warnings, it’s hard to see this as the accidental passing of a misguided law that won’t even tackle the sort of actual hatred that it purports to be tackling. This feels deliberate, and when laws this bad are forced through, it’s because someone is very, very keen on using them. The people of Scotland should be very concerned about what is coming.