Humza Yousaf’s programme for government — Holyrood’s duller, drabber answer to the King’s Speech — was mostly a Nicola Sturgeon tribute act. Heavy focus on social and cultural issues. Lots of leftish-sounding buzzwords (‘progressive’, ‘equality’, ‘diversity’) but nothing truly transformative. Still, just because the SNP leader’s speech and the legislative agenda attached were retreads of his predecessor’s era, it doesn’t mean this programme should be overlooked. In fact, there are a number of provisions that are worth keeping an eye on.
First up is one of the most disputed pieces of legislation ever produced by the Scottish parliament, one authored by Yousaf in his former role as Sturgeon’s justice minister: the Hate Crime and Public Order Act 2021. The legislation has been in limbo for the past two years, on the statute books but not yet implemented. An accompanying document to the programme for government makes clear implementation will now move forward.
The Act is already notorious for its sweeping illiberalism. It creates a new offence of ‘stirring up hatred’ against a list of protected characteristics, including ‘transgender identity’. It makes people liable for prosecution for ‘hate crimes’ committed in the privacy of their own homes. It gives police the right, after procuring a warrant, to search premises and ‘seize and detain any material found on the premises, or on any person in the premises’ that may be connected to ‘stirring up hatred’. It hands courts the power to dispose of materials (e.g. writing or videos) deemed to have stirred up hatred. Anyone convicted under the Act faces up to seven years in prison.
The political ideology that claims to be ‘anti-racism’ exists in the orbit of critical race theory
Next, the Scottish government will bring forward a Bill creating a criminal offence of ‘misogynistic conduct’, defined as ‘behaviours which can denigrate women and reinforce barriers to an equal society’. This follows recommendations from a working group appointed during Nicola Sturgeon’s tenure and headed by Baroness Kennedy. It’s not yet clear how misogynistic behaviours will be defined but the lesson from the Hate Crime Act is that Scottish ministers go in for very broad parameters when it comes to drafting legislation.
Another question is how the Bill will define ‘women’. The Scottish government hitched itself to gender self-identification with the Gender Recognition Reform Bill. Self-identification means that anyone claiming to be a woman is a woman, even if the person in question is a man. However, facing questions about Isla Bryson (Adam Graham), the convicted rapist initially housed in a women’s prison after he identified as a woman, Yousaf asserted that Bryson was ‘not a genuine trans woman’. He didn’t elaborate on how he could tell or whether others were permitted to disregard someone’s self-identification and dismiss them as not genuinely trans. Looming over any attempt to define a woman for the purposes of prosecuting misogynistic behaviour is Lady Haldane’s ruling in For Women Scotland (2) that, in regards to the Equality Act 2010, sex is ‘not limited to biological or birth sex’.
Then there is a commitment to legislate ‘buffer zones’ around abortion clinics to keep away opponents of terminating pregnancies. This has become a priority among the Holyrood political class because of regular prayer vigils and demonstrations across the street from Glasgow’s Queen Elizabeth University Hospital, which provides abortion services. Although the law can already address violent or harassing behaviour, supporters of abortion contend that the sight of these vigils and demonstrations causes distress to women and medical staff as they enter and leave the hospital. They want the law to restrict the right to assemble and engage in anti-abortion speech within a certain vicinity of such facilities. Ministers will now support the Abortion Services (Safe Access Zones) Bill proposed by Green MSP Gillian Mackay.
For what it’s worth, I consider these vigils and demonstrations counter-productive for the right-to-life cause but I remain to be convinced they represent harassment as opposed to speech that others find objectionable, upsetting or offensive. It would be possible to prohibit certain acts (e.g. recording those entering and leaving a clinic) without imposing a blanket ban on gatherings. Similar legislation is in place elsewhere, so it is possible to craft such a law, but this has come under scrutiny following the arrest earlier this year of a Catholic woman for silently praying outside an abortion clinic in Birmingham. A Scottish buffer zones Bill would raise questions about the rights of assembly, expression and religious practice, but the devil is likely to be in the detail and the definitions.
Elsewhere, the programme promises a Human Rights Bill to ‘incorporate into Scots law international economic, social and cultural rights’. These will include ‘rights relating to women, disabled people and people who experience racism, as well as recognise the right to a healthy environment’.
Incorporating international conventions is a reasonable step for a government that places great emphasis, at least in rhetoric, on human rights. However, previous attempts to do so have gone badly, such as the 2021 UNCRC Bill, which sought to incorporate the United Nations Convention on the Rights of the Child. Six provisions of the Bill were found by the Supreme Court to be ultra vires. Ministers in Whitehall will be studying this new Bill closely to see whether it also oversteps the powers of the Scottish parliament. A secondary consideration is that this is another example of Holyrood signalling a distinctive Scottish position on international conventions. Less blatant than its barging into foreign policy matters but another way in which devolution is being used to present Scotland to the world as sovereign state in embryo.
Finally, Yousaf’s programme for government undertakes to ‘continue to embed anti-racist practice and principles in initial and ongoing professional development for teachers and educators’. This will include ‘the promotion of a decolonised curriculum which reflects diversity, social justice and Scotland’s role in trans-Atlantic enslavement’. As ever with this issue, it’s important to distinguish the highly-contentious radical ideology which calls itself anti-racism from the right and proper business of teaching children about ethics, including the irrational wickedness of judging or mistreating people based on their perceived racial or ethnic origins. The political ideology that claims to be ‘anti-racism’ exists in the orbit of critical race theory and its subsequent applications and adaptations. Where it promotes disputed ideological concepts (e.g. white privilege), it should be presented by schools as one opinion and not as fact.
The same goes for decolonising the curriculum. Teaching Scottish schoolchildren about the country’s role in the slave trade is a sound objective, but reshaping or restricting curricula or teaching resources in line with racialised reimaginings of historiography and historicity would be an act of politicisation. Again, though, there are sundry definitions of ‘anti-racism’ and ‘decolonising the curriculum’ and the Scottish government’s Anti-Racism in Education Programme isn’t exceedingly clear on these matters. It will be interesting to see what developments there are in this area, particularly given the determination of radicals to crowbar controversial ideas into the curriculum. This is something of which we should be wary. She may be one of Scotland’s great literary antiheroes but Miss Jean Brodie’s political pedagogy is a warning to learn from, not a model to emulate.
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