Beware the Hate Monster

The SNP's illiberal Hate Crime legislation is certainly a nightmare

A new bogeyman has been invented to scare Scottish children at night: the Hate Monster. Resembling a reject from Sesame Street, this carton icon of negative emotion has been enlisted by Police Scotland to publicise the Scottish government’s controversial Hate Crime and Public Order (Scotland) Act 2021, which will finally come into force on April 1^st. 

And yes, the date has been noted - but unfortunately this is no April Fool. It marks the Scottish Government’s latest foray into what has been called “progressive authoritarianism”. This is illiberal and probably unworkable legislation supposedly designed to protect from abuse people with the characteristics of “disability, race, religion, sexual orientation or transgender identity”.  Though not, you will note, people with the characteristic of being a woman. They are somehow excluded from this hierarchy of victimhood. 

Actually, according to the Hate Monster, this has very little to do with protected characteristics. “If you or someone you know is a victim of hate”, says Police Scotland’s campaign monster baldly, “report it”. No reference there to the Equality Act or categories of “aggravated” crime. The perpetrators of hate, we’re told, are mostly young men aged 18-30 from “socially excluded communities” who have “ideas about white-male entitlement”.  This presumably to be distinguished from black-female entitlement. People who live in nice houses it seems don’t tend to hate anyone. 

I don’t know who invented this risible campaign, but it has certainly worked in one way: it has alerted people to the repressive idiocy of the Scottish government’s new crime of “stirring up hatred”. For, in Scotland next month you’ll be able to drop into a sex shop, make an anonymous accusation of hate crime against someone you dislike and potentially see your bete noir locked up.   The sex shop in question is an LGBTQ-friendly establishment in Glasgow’s Merchant City. It is what is called a “third party reporting centre” set up by Police Scotland to provide a “safe space” for people to accuse others of hate crime.  There will be 411 of these “snitching centres” the lengths and breadth of Scotland conveniently located everywhere from libraries to mushroom farms. And no - I don’t know what mushrooms did to deserve this responsibility - they’re supposed to be kept in the dark.

This new offence of “stirring up hatred” is so vague that ministers have given up trying to define it. They invariably refer you to the Police Scotland website, where a hate crime is defined as “any crime which is understood by the VICTIM or any other person as being motivated, wholly or partly by malice or ill will towards a social group”.  What on earth does that mean?   What it does NOT of course mean is “harassment” or “threatening behaviour” both of which are already illegal.  The purpose is clearly to criminalise speech which some minority groups find offensive or abusive. It gives carte blanche to any one who feels they have been misgendered, ridiculed, or that their religion has been disrespected, to leap to their nearest reporting centre to ventilate their hurt feelings. 

As the SNP MP Joanna Cherry KC forecasts, the law will most likely be “weaponised” first against gender critical women. Trans activists across the land will be able to accuse JK Rowling, of being a transphobe to their hearts content by dropping in to one of the hundreds of third party reporting stations. The trans campaigner, India Willoughby, has already tried to have the novelist prosecuted for misgendering him/her.  After the complaint was dismissed by Northumberland Police, Willoughby’s supporters made clear they will be accusing JK Rowling in Scotland where she lives. They might even succeed. For this new law takes us into uncharted legal territory. 

You see the Hate Monster tells us that the new law is directed at people “who may be angry and frustrated and take it out on others… in other words they commit a hate crime”.  By what legislative madness could being angry ever be construed as a crime? And you can forget the usual legal test of whether or not a ”reasonable person” would find the action in question to be criminal – the accuser is judge and jury here. Nor is there any need for evidence since this offence is entirely subjective.  Police Scotland repeatedly insist that “evidence is not necessary” and it is “the perception of the victim alone” that determines a hate incident.

And this draconian thought crime applies even in the privacy of your own home.  The “dwelling defence” in the old 1986 Public Order Act, which protects people living under the same roof from prosecution, has been dispensed with in the Hate Crime Act and Public Order (Scotland) Act.  Cue police barging into Scottish homes to record a hate crime every time a teenager accuses their dad of being homophobic or racist. Perhaps our digital friend Alexa will be enlisted to ensure that no offence goes unrecorded. 

According to the Scottish Government’s guidance, this law has created a stand alone crime of just being not a very nice person. The Hate Crime Act was passed by Holyrood three years ago and has been stalled until now, largely because the police have had profound reservations about whether and how to implement it. The Scottish Police Federation - not an organisation renowned for defending freedom of speech - wisely warned that the law would “paralyse freedom of expression for individuals and organisations by threatening prosecution for the mere expression of opinion”. The First Minister, Humza Yousaf, has insisted that this is scaremongering. Freedom of speech is protected, he says, and no one will be prosecuted for what they think.   However, it is clear from the government guidance that what people think can and will be prosecuted if the “victims” perceive it to be abusive or discriminatory. This applies even to stage performances and comedy shows. Stand Ups be warned.

Even when there is no crime committed, Police Scotland will record the complaint automatically as a “hate incident”. This takes us even further into legal la la land. You can be guilty of a crime even when you aren’t. All police records can be revealed in “enhanced disclosures” - in the security background checks that organisations are required to make when they offer someone a job as a teacher or a post with similar responsibility for vulnerable people. So, you will never know why you didn't get that job for which you thought you were so well qualified. Someone somewhere had been whispering gossip anonymously into a willing ear in their local third party reporting facility. Bingo: a hate incident goes next to your name. This is guilt by accusation, and there is no right of appeal. 

Moreover,  Police Scotland insist they will investigate and record “every single report” of hate, even though they’ve also said they are going to ignore many other “minor” crimes because of a chronic lack of manpower. Scotland will be a country where twitter spats matter more than burglaries. This is complete madness - as the former general secretary of the Scottish Police Federation, Calum Steele, has pointed out. “I suspect that within a very short period of time” he says, “we will have ‘data’ suggesting Scotland to be one of the most ‘hateful’ countries on Earth. This Jackanory data will be used to justify an endless drive to deliver a Pygmalion utopia.” And don’t think this will end at the Border.  There will be pressure from the usual lobbies on the next Labour government to follow Scotland’s “progressive” path.

We can only hope that this illiberal new law will come unstuck when its contradictions become apparent in a court of law as happened with previous ill-considered measures like the Offensive Behaviour at Football and Threatening Communications (Scotland) Act, which tried to criminalise football chants, or the Named Person’s (Scotland) Act which tried to appoint a state guardian for every Scottish child. The OBFA had to be repealed after a sheriff described it as “mince”. The Named Persons scheme is still law but has been shelved for the duration - largely because teachers and health visitors realised that, as named persons, they’d be first in the firing line for blame in future cases of child abuse. 

Perhaps we could hasten the demise of Scotland’s Hate Crime Act by citizen’s initiative.  How about going to your local snitching centre to finger the police themselves? After all, the departing chief constable of Scotland, Iain Livingstone, recently said the organisation he led is “institutionally racist”. Could they not be arraigned for feeding the hate monster? 

Joking aside, this unnecessary and indefensible law will make huge demands on police time, lead to wrongful arrests and will probably wreck the lives and careers of perfectly innocent people who’ve tweeted something stupid that they regret.  There is no need for a new law covering incitement to racial hatred. Of course we need laws against harassment, stalking and abusive and threatening behaviour - but these are already crimes. The Scottish government thinks it is “sending a message” to racists and transphobes that their behaviour is unacceptable. All they are doing is sending a message that the SNP government cannot be trusted with responsibility for our criminal justice system.