Imagine if you were to sit in your own living room and say, “Men can’t be women,” and the police would record a “hate incident” against your name.
Imagine, also, that your constitutionally protected right to express an opinion counted for little because all that mattered was whether the man who heard you perceived it to be unpleasant.
As of Monday, this is the planet you will be living in if you live in Scotland. And no, it’s hardly an April Fool’s trick by the Scottish Government, despite the timing when it comes into power.
Hate and Public Order (Scotland) Act has savage parallels to the Stasi in East Germany, according to its critics.
Billed as a necessary legislative update to a hotch-potch of anti-hate laws (it finally abolishes the offense of blasphemy, last prosecuted in 1843), it extends the offense of stirring up hatred to cover not only race and religion but also age, disability, sexual orientation, transgender identity, and “variations in sex characteristics”.
Politicians have warned that the extreme trans movement may “weaponize” the new law in order to criminalize anyone who professes their belief that a person’s birth sex cannot be transgender.
However, The Telegraph has been told that Police Scotland– which has just announced it will no longer investigate specific low-level crimes– is diverting resources so it can investigate the expected influx of angry phone calls it may receive from those offended by other people’s opinions.
Every hate crime complaint that the police investigate will be logged as a non-crime hate incident (NCHI), even if there isn’t even the slightest hint of proof that a crime has been committed, and the force has promised to do so.
Small wonder that women’s right politicians fear that the new rules will be used by trans extremists to settle scores and silence anyone who dares to challenge their worldview.
If George Orwell were still alive, he might publish a book about it and give it the title Twenty Twenty-Four.
There is no Big Brother in this story, though: only members of the public who are being encouraged to call the police if they are upset that someone doesn’t agree with them. Or they can contact a network of “Hate Crime Third Party Reporting Centers” that include universities, sex clubs in Glasgow, and salmon factories in Berwickshire (a mushroom farm in North Berwick was taken off the list after receiving some ridicule in the media).
Susan Smith, a director of the feminist campaign group For Women Scotland, paints a bleak picture of the country Scotland is about to become.
She states: “We are looking at an army of local spies who might be able to pass on anonymous reports from other local spies to the police. Some people are very gleeful about this and they’re going to report everyone they don’t like. It is absolutely insane and very Stasi.”
The sex shop Luke & Jack is one of the third-party reporting centers. Jack, marketed as “passionate purveyors of pleasure products…a safe space for LGBTQI folk in Glasgow”.
Smith begins to laugh as she talks about the possibility of police officers there taking down alleged crimes like fake police officers because it seems so ridiculous to say it aloud. However, Scotland has come to this situation under the SNP.
Dr. Michael Foran, lecturer in public law at the University of Glasgow, says the new legislation “brings the criminal law into your home” even when you are having private conversations.
He states: “The classic example might be a teenager who is particularly upset that their parents don’t agree with them on issues like transgender equality and who anonymously reports them for a hate crime.”
The first minister of Scotland, Humza Yousaf, who spearheaded the new law while serving as justice secretary, has argued that no one will be found guilty of a crime if they are simply expressing their opinions.
That is beside the point, claim critics of the new law. The legislation gives police the powers to seize personal property such as computers and mobile phones to search for evidence of criminality when a complaint of hate crime is made, and to hold onto them until a decision is made on whether to prosecute or not, which could take many months. They might also require hate crime suspects to appear at police stations for interviews, statements, or even visit their homes. As the old saying goes, the process is the punishment.
Conservative MSP Murdo Fraser is one who is aware of what it’s like to be a police officer for speaking up for one reason or another.
Last November he tweeted about the Scottish Government’s non-binary equality action plan, saying: “Choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat. I don’t think governments should spend time creating action plans for either.”
A member of the public complained to the police, who determined that no crimes had been committed but referred to it as a “hate incident.” Fraser only found this out when a separate complaint was made to the Scottish Parliament’s ethical standards commissioner citing the police reference number for the hate incident.
According to Fraser, “We don’t know how the police and courts will handle complaints under the new Act, which means that people don’t know what they can and can’t say, which has an impact on free speech.”
“Because the police have said they will investigate every incident you can see this whole system being weaponised by individuals who want to make spurious complaints. A trans rights activist who used it to try to end debates brought the complaint against me.”
The Scottish government insists that incidents are not recorded in the name of the alleged perpetrator, and that it collects data from non-crime hate incidents.
Fraser is doubtful, pointing out that “when I complained to the police about it they were able to find the incident” without any difficulty. He also has a concern that these incidents might be dredged up as part of enhanced disclosure and barring service (DBS) checks in the future, which might cause issues for those applying for positions like teaching.
Fraser believes Police Scotland are acting illegally and in breach of the Human Rights Act and the Data Protection Act, citing the fact that police in England and Wales have stopped recording non-crime hate incidents after a legal challenge.
Tony Lenehan KC, the president of the Faculty of Advocates Criminal Bar Association, a representative body for barristers in Scotland, says merely being accused of a hate crime could be “life changing ” for people who have done nothing wrong.
If you see yourself as someone who is perceived as a potential criminal, he says,” this could change your entire perception of how you fit into society.” I have colleagues who have gone through a complaints process because they have addressed a jury as ‘ladies and gentlemen’ and someone has found that offensive. This is going to be a thousand times worse.
“Imagine the horror of being brought into a police station and questioned. I have n’t met anyone in the criminal justice system who supports this legislation. ”
According to Lorenehan, existing laws already offer a lot of protection against real hate crimes, making the new law completely unnecessary.
He points to data compiled by Scotland’s Crown Office ( the equivalent of the Crown Prosecution Service ) that shows total reported hate crime to be below what it was a decade ago, and questions what is behind the new legislation.
He claims that the desire to signal virtue is being fueled more by the warm glow that virtue signaling evokes than by any genuine concern for a need within the criminal justice system. “This government has previous form for virtue signalling by aligning itself with certain groups. ”
This belief appears to be borne out by “Hate Hurts” advertisements being pumped out by the Scottish Government telling the public “if you witness a hate crime, report it”. Is the SNP promoting the new law solely to make money off of it rather than to fill a genuine need?
Police Scotland has also been running a campaign to encourage the public to use the new law, with the now-infamous cartoon “hate monster” that states that “if you want to vent your anger just because people look or act different from you…then you know it, you have committed a hate crime.”
Calum Steele, former general secretary of the Scottish Police Federation, which represents rank and file officers, is among those who fear that the police will be swamped.
He adds, “I have heard from colleagues that they are redistributing resources to other locations to deal with the influx of reported hate speech.”
He claims that there is a solution to the issue because: “It’s difficult to imagine how you could prove someone was wasting police time when everything is based entirely on their perception rather than evidence.”
Steele is also concerned that using law-abiding people as suspects will impair the police’s “policing by consent” contract.
One of those who expects to be in the firing line on Monday is Lucy Hunter Blackburn, a gender-critical writer and one third of Murray Blackburn Mackenzie, a firm of policy analysts based in Edinburgh.
“This is about the use of state resources and the road to hell being made with good intentions,” she says. “I am a middle-class, lefty liberal and I am 99 per cent sure I’m going to get reported to the police when Monday comes.
“I don’t believe prisons will be overcrowded with [gender-critical] women, but I believe it will be done to intimidate people. People are already looking over their shoulders so you can see the chilling effect this is having on free speech.”
The Scottish Government insists that free speech is protected under the new law, and under separate freedom of expression laws; The courts may decide whether or not that is accurate in the end.
The doubters cite the fact that the new Act expressly permits people to voice “antipathy, dislike, ridicule or insult” when it comes to religion (something religious groups were keen to include, in order to allow robust debate of faith matters) but there is no such carve-out for any of the other protected characteristics covered by the law.
According to legal scholars, the absence of this caveat for transgender identity, among other characteristics, could reasonably be interpreted as saying that it is against the law to express antipathy, dislike, ridicule, or insult to those who fall under the other categories. Does this mean that expressing “dislike” for someone’s age or transgender identity could be a crime?
According to Dr. Foran, a large part of the issue is due to the new law’s vagueness.
He says: “Ordinarily you might assume that ridiculing someone would not cross the threshold [of criminality] but because it specifically says you can ridicule religion it suggests you can’t ridicule other things, and that raises questions for freedom of expression.
It also leads to new criminal offenses because it encourages the spread of hatred, which was once restricted to race but has since expanded to transgender identity, among other things.
“But it doesn’t introduce an equivalent crime of stirring up hatred on the basis of someone’s philosophical belief, such as gender critical beliefs. The law covers people who punch trans people, but Terfs (trans-exclusionary radical feminists) don’t.” Susan Smith argues that this creates a “hierarchy” of rights, in which the law places the rights of transgender people above the rights of gender critical women.
J.K. Rowling, the author who has repeatedly incensed the radical trans movement by insisting that men cannot be women, is the Winston Smith of this contemporary Orwellian saga.
Former prosecutor Rajan Barot has advised her to delete her posts on Twitter which, he says, “most likely contravene the new law”, to which Rowling has defiantly replied: “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.”
However, Police Scotland has a different perspective on who is most likely to break the new law. On its website, it informs the public that: “We know young men aged 18-30 are most likely to commit hate crime, particularly those from socially excluded communities who are heavily influenced by their peers. They may also have ideas about white male entitlement and deep-rooted feelings of being socially and economically disadvantaged.”
Blackburn describes this as a verbose way of describing the white working class, the type of people who have been let down by the SNP government’s failures in terms of education, health, and drug use.
She says: “Schools are running out of exercise books, library funding has been cut, so things that bring people together are being cut and the SNP seems to think that the way to build a more tolerant society is by calling the police.”
Another category of people who might find themselves being reported for hate crimes is comedians.
The guidance that Police Scotland is disclosing to its officers on how to interpret and apply the new law has been obtained by a Scottish newspaper, which states that any play that is a “public performance of a play” could violate the law if it contains “threatening and abusive” material.
Police Scotland issued a statement insisting it wasn’t “instructing officers to target comedians, or any other people or groups” but Lenehan and others are not convinced.
A group called Comedy Unleashed is holding a show in Edinburgh on April 1 that it claims will feature “some particularly offensive stand-up” in order to challenge the new law. Tickets for it reportedly sold out in nine minutes.
Co-founder of the group Andrew Doyle stated to Dominic Cavendish of The Telegraph: “We’ve always known this could have an impact on comedians. Humza Yousaf was asked about this concept of stirring up hatred through the medium of theatre and he said it was conceivable that neo-Nazis might stage a play in order to radicalize people, which shows how little he understands neo-Nazis.”
Simon Evans, who performed at last year’s Edinburgh festival, said: “I chucked in a couple of lines – referring to Nicola Sturgeon as a perfectly nice chap and Humza Yousaf as ‘formerly Cat Stevens’. I believe I would now be more reluctant to do that work.
“I don’t have the political nous and youthful energy to take the establishment on. I enjoy making money from corporate events. And the last thing you want is someone from Human Resources running you through a police check before they book you.”
A Scottish Government spokesman said the new offenses contained in the Act “have a higher threshold for a crime to be committed than the long-standing offense of stirring up racial hatred, which has been in place since 1986. The new Act provides protections for people’s freedom of expression.”
According to a spokesman for Police Scotland, the Macpherson Report’s investigation into the murder of Stephen Lawrence had established the recording of non-crime hate incidents for many years, and that: “Recording is victim-focused and officers will aim to keep the information recorded in a hate incident anonymized where possible.”
The spokesman claimed that police were trained to balance individual laws and human rights, and that third party reporting centers provided a safe place for people to file reports when they might not feel at ease with doing so to the police.
The spokesman added: “Hate crime and discrimination of any kind is deplorable and entirely unacceptable. We will examine each report.”
