For the Scottish National party, the phrase ‘nanny state’ is not so much a criticism as an aspiration. This is the party that wanted to assign a state guardian to every child born in Scotland through its ‘named person’ scheme, only to be thwarted by the Supreme Court. Under Nicola Sturgeon’s leadership, there have been repeated attempts to regulate the eating and drinking habits of people, including proposed bans on two-for-one pizza deals and minimum pricing on cheaper alcoholic drinks.
It makes sense, then, that the party’s paternalism should extend to the question of free speech. Scotland’s new Hate Crime and Public Order Bill was ostensibly proposed to repeal outdated proscriptions against blasphemy, but will instead usher in a range of new blasphemy laws by stealth. Most controversially, part two of the Bill pertains to the offence of ‘stirring up hatred’, which criminalises anyone who ‘behaves in a threatening, abusive or insulting manner’ or ‘communicates threatening, abusive or insulting material to another person’.
Moreover, the Bill explicitly allows for intention to be put aside. If behaviour or material is ‘likely’ to stir up hatred against any protected groups (defined by age, disability, racial or ethnic identity, sexual orientation, transgender identity or ‘variations in sex characteristics’) then whether or not the perpetrator intended to do so is immaterial. Even an actor playing a bigoted character could be prosecuted under the proposed laws. An entire section of the Bill is devoted to the ‘public performance of a play’, which specifies that actors and directors can be found culpable if members of protected groups find the material offensive. So if you are troubled by the anti-Semitism of Shylock’s detractors, or the Islamophobia of Tamburlaine’s decision to burn the Quran, you can complain to the Scottish police. Next year’s Edinburgh Festival should be interesting.
The implications for stand-up comedy are similarly dire. As practitioners of an art form that often teases the limits of public tolerance, comedians frequently find themselves involved in free speech battles. The dean of the Faculty of Advocates, Roddy Dunlop QC, has already warned that stand-up would not be exempt from the SNP’s Bill, and that even an old-fashioned ‘Scotsman, Irishman and Englishman’ joke may be perceived as discriminatory. Certainly, some of the more subversive acts that regularly appear at Comedy Unleashed, a night I co-founded in London, would be at risk of prosecution should they venture north of the border.
The Bill even goes as far as to criminalise the possession of ‘inflammatory’ material, which is why senior Catholic bishops have raised concerns that possession of the Bible could become a criminal offence. Let’s not forget that Leviticus 20:13 calls for the execution of gay men.
In a statement that out-Donald-Trumps Donald Trump, the SNP’s Justice Secretary Humza Yousaf has asserted that the Bill ‘does not undermine free speech’, but rather ‘protects it’. Given that this Bill could see those found guilty of ‘insulting’ behaviour imprisoned for seven years, Yousaf’s claim is at once hilarious and disturbing.
‘The Bill does not seek to stifle criticism or rigorous debate in any way,’ writes Yousaf. ‘People will still be able to express controversial, challenging or even offensive views as long as this is not done in a threatening or abusive way that is intended to stir up hatred or likely to stir up hatred.’ None of which addresses the problem of how such vague legislation is apt to be interpreted. In accordance with all official law enforcement guidance in the UK, the website for Police Scotland defines an incident or crime as ‘hateful’ based on the perception of the ‘victim’ (Newspeak for ‘complainant’). If hatred is a matter of perception and not intent, and even the context of dramatic representation is considered irrelevant, how can we possibly safeguard against the abuse of state power?
We must always be vigilant against the introduction of legislation when couched in such vague terms. Yousaf’s stated conviction that ‘free speech itself is never an unfettered right’ strongly suggests that the Bill’s ambiguity is no accident. Even the Scottish Police Federation has warned that its effects would be tantamount to the ‘policing of what people think or feel’, and the Law Society of Scotland had called it a ‘significant threat to freedom of expressions’. That the SNP seem determined to ignore these objections may not be particularly surprising, but it should be a matter of uttermost concern for those of us who still believe in the preservation of liberal values.