“Arrest me” says JK Rowling

The Scottish Government’s ludicrous hate crime act has failed at the first hurdle

The Hate Crime and Public Order (Scotland ) Act is barely a day old and already JK Rowling has tested it to destruction.  In one mega tweet in which she repeatedly misgenders transwomen and showcases a succession rapists and sexual offenders who’ve been placed in Scottish women’s jails, the Harry Potter author has done exactly what this Act was supposed to prevent. She has - a reasonable person might judge - expressed malice and ill will toward people with the “protected characteristic”of transgender identity”.  She has arguably “stirred up hatred” against a sexual minority - at least in the eyes of legions of folk on Twitter including a number of lawyers and academics.

The  Scottish Government thinks so too. At least the Scottish Community Safety Minister, Siobhan Brown, told BBC’s Today that “it would be up to the police” to judge whether Rowling’s repeated misgenderings amounted to hate speech and that she fully expected such an allegation to be investigated.

  Rowling’s response?  “Arrest me”.

This is not so much cat among the pigeons as a tiger in the henhouse - and the Scottish government and the police are now running around like headless chickens.   This isn’t what was supposed to happen. 

The SNP Government thought that this legislation would merely “send a message” that Scotland is not a land which tolerates hatred against minorities - it was a branding exercise.  It was also a classic case of the folly  of using the criminal law to send a press release. The MSPs - of all parties - who voted for it in Holyrood didn’t think they had to bother about whether it was actually workable.  After all, they thought, not one approves of hate, do they?  Who can possibly disagree with banning it? Well, now they know.

They failed  to give any clear definition of “stirring up hatred” and resorted to the supposed “Macpherson” doctrine of 30 years ago - namely that hate crime is whatever the offended person says it is.  On every Police Scorland website and leaflet, you will see hate crime defined as “any crime which the VICTIM or any other person, perceives to be motivated, wholly or in part, by malice, ill-will and prejudice towards a person or group”.   This is a manifestly irrational and unjust  proposition,  yet no one thought to contradict it during the passage of the Hate Crime Act because no one wanted to appear to be defending hate crime. In a parliament with no revising chamber and a surfeit of virtue-signalling politicians, the act was passed on a wave of feel good sentiment.

And there it stands in all its unenforceable absurdity. The idea that the ordinary policeman or woman on the street is now supposed to decide whether or not to collar mega stars like JK Rowling, or gender critical politicians like Joanna Cherry KC MP, is patently ridiculous.. Yet that is how the Scottish Government has left the Scottish law on hate crime..

Rowling’s tweet is a direct and calculated assault on the Hate Crime Act. If she is not investigate and not recorded as having perpetrated a hate incident the legislation will be shown to be unenforceable in practice - at least as far as people of wealth and media prominence is governed . And of course the police are not going to arrest JK Rowling. The idea is preposterous.  But that doesn’t mean this legislation is dead.

It will remain lurking disreputably on the statute book for years. Once the row over Rowling is over the Hate Crime Act will still be capable of causing grief, stress and expense for innocent individuals who lack global celebrity and financial resources. 

The targets will probably be unknown public sector workers - possibly teachers or social workers or local government workers - who fail to adopt the correct pronouns or claim that men cannot change sex and do so in the hearing of some woke colleague or trades union rep.  A hate crime form will be sent, anonymously or course, to one of the 411 third party reporting centres.  There officers will duly log a “hate incident” and even if it is not investigated the person’s name will be on police records for malign colleagues to use against them. It is a deeply unpleasant prospect.

Of course we are assured by the many legal experts on Twitter that no one will be prosecuted un justly because a “reasonable person” will have to agree that the speech in question is threatening and abusive. The trouble is that reasonable people are pretty thin on the ground in the age of social media when just about anything can be construed as hateful if enough people get upset about it. Women have been arrested for putting up stickers calling for single sex prisons. Even former police officers have been reported for allegedly transphobic tweets. Some supposedly “reasonable” people are convinced that misgendering someone is a crime because it is denying a trans person's “right to exist”.  The SNP MSP Fulton MacGregor told BBC Newsnight last week that he wouldn’t be at all surprised if JK Rowling is reported for repeatedly misgendering the trans newsreader, India Willoughby. 

Are judges reasonable people?  In 2019, one of them James Taylor, ruled that tax researcher, Maya Forstater’s, belief that people cannot change biological sex “was not worthy of respect democratic society” – in other words was hate speech equivalent to Nazism and advocating genocide.   That was eventually overturned after a lengthy appeal – but judge Taylor was supposed to be capable of judging reasonableness and somehow didn’t.

Some years previously, another judge fined the Lanarkshire councillor, Danny Meikle, £750 for calling a Welsh constituent an “effing boyo”.  I’m sure 90% of the reasonable people would think that is ridiculous and that calling someone a “boyo” is no more racist than calling someone an  jock”. But don’t go there because people on Twitter are now insisting that jock is racist and should be “protected”. No doubt some goon will report cybernats for anglophobia. 

And will the 500 “hate crime champions” that chief constable Jo Farrell has enlisted from the ranks of Police Scotland all be reasonable?  Not if they have been schooled by “stakeholders” like Stonewall, which has been accused of giving misleading advice on the law.  Farrell’s hate squad will have to decide in real time what the new stand alone law of “stirring up hatred” actually means.  

 For, it does not just mean “threatening and abusive behaviour”, as columnists like law lecturer Andrew Tickell claim it does. Such behaviour is already illegal under numerous  criminal justice and public order statutes – and rightly so.  This new law of stirring up is very clearly directed speech and has an open ended definition.  

The “reasonable person” doesn’t get a look in here. Indeed, you might think it almost a definition of unreason to say that someone is a victim of a crime just because they say they are. No evidence is required and no debate is allowed. If the trans campaigner, India Willoughby, says he/she (delete as applicable) is a victim of hate crime then “they” is. 

Here is the paradox of the reasonable person confronted by an unreasonable law.  Is it reasonably to dismiss a law of because you think it is unreasonable?  Or do you accept it because it is reasonable to obey the law of the land even if you don’t agree with it?   This has always been the dilemma faced by people living in oppressive and authoritarian regimes.  The SNP’s hate crime legislation has made it a very real issue for every Scot.   

What is a reasonable person to make of this surreal concept of  “non-crime hate incidents”, (NCHIs) hundreds of which are already being recorded by Scottish police every year. No crime has been committed yet these offences carry their own form of administrative punishment. This is because the police can release NCHIs under “enhanced disclosure” to HR departments assessing the suitability of candidates for certain jobs.

You didn’t get that post you were so well qualified for? Just don’t ask.This is guilt by accusation and there is no right of appeal. Yet Jo Farrell. made clear that NCHIs were here to stay because they “help police assess inter-community tensions”.  Well that’s one way of putting it. Does our reasonable person accept this? Apparently. 

We’ve had repeated assurances that reasonable people will protect performers and playwrights against prosecution.  That was until it emerged last week that Farrell’s 500 have been given training suggesting that hate speech can indeed be “communicated through the performance of a play”.   This has been strenuously denied by the Scottish government and Police Scotland. But the damage has already been done. Why will any playwright take the risk?

This is how the Hate Crime Act has debased public life in Scotland even before it has been implemented.  Plays, books, articles will not be published  because publishers simply won’t take the risk. The hate speech law has had a chilling effect on everyone.  Writers, performers, journalists are checking their twitter feeds for anything offensive material.  

JK Rowling is adamant that she will continue to misgender India Willoughby and any other transwoman who crosses her path, but she’s powerful enough to deal with the consequences.  It’s the rest of us who’ll be shut down by a law that is as illiberal as it is nonsensical, imposed by a government of progressive authoritarians who're most definitely not reasonable people.