Every time I re-read the SNP’s Hate Crime Bill, I become more convinced that its author, Humza Yousaf, is trying his hand at a Titania McGrath style satire of wokeness. Scotland’s justice secretary is woke but his draft legislation is such a smash-’n’-grab of every item on the wishlist of coercive progressivism that he can’t be entirely serious.
It’s not everyone who can forge common cause between the Catholic Church and the National Secular Society, the Law Society and the Scottish Police Federation, so Yousaf is gifted in that regard. Now the Faculty of Advocates, Scotland’s answer to the Inns of Court, has issued a 35-page examination of the Bill, warning among other things of serious ‘potential unintended consequences’.
The Faculty considers the wording of the new offence of ‘stirring up hatred’ based on ‘religion or, in the case of a social or cultural group, perceived religious affiliation’ to be ‘vague and likely to create difficulty, not least in relation to questions of football and sectarianism’. As I have previously argued, this Bill effectively revives the SNP’s Offensive Behaviour at Football Act by treating the entire country as a football stadium.
The Faculty notes ‘the considerable expansion of the list of characteristics beyond matters of race’ and raises concerns about proposals to prosecute anyone who ‘communicates threatening, abusive or insulting material to another person’. The professional body warns that ‘an individual may be prosecuted and convicted of an offence of stirring up hatred in circumstances where there was no intent to do so but rather a single comment, picture, personal or political viewpoint is communicated to one or more people (for example in a WhatsApp group or similar)’.
Yousaf’s Bill is severe enough to make any authoritarian regime proud, but he seems unable to be dissuaded from the dangerously illiberal path he is taking Scotland down. He appears to be the sort of progressive who believes the world is divided between Good People (those who agree with him) and Bad People (the right-wingers and the racists). It seems not to occur to him that a Law Against Bad People Saying Bad Things could possibly capture those he deems politically virtuous.
It strikes me that Yousaf’s Bill could bring its draconian penalties (up to seven years in prison) on unintended subjects. This is particularly so in the case of ‘stirring up hatred’ on the basis of race. Yousaf might suppose his legislation will simply silence knuckle-dragging white nationalists, but Scots law does not conform to the mercurial theories of racism dreamed up on campuses. An Act that proscribes ‘threatening, abusive or insulting’ behaviour proscribes it in all scenarios and without reference to the race of the accused or the alleged victim.
The current political context has emboldened racists, while bigoted ideas once confined to academia and activism are now out in the open. Concepts like ‘white privilege’ and ‘white fragility’, and analogue prejudices about white people, white culture and white collective villainy, might be uncontroversial in newsrooms and lecture halls but the pertinent question is how the Hate Crime Bill would view them. If I were a Black Lives Matter activist, I would be very uneasy about the possibility of Yousaf’s Bill becoming law.
Another group not directly targeted by the Bill but at risk of running into difficulty with it are anti-Zionists. Given the broad definitions of religion, race and intent(‘race, colour, nationality including citizenship, or ethnic or national origins’) – and given the evolving understanding of the relationship between anti-Zionism and antisemitism – there is every potential for inflammatory rhetoric about Zionism and Zionists to come under police scrutiny.
The Faculty identifies the ability of prosecuting directors and performers working on plays that ‘stir up hatred’ as applying also to dance, opera, sketch shows and stand-up comedians. (The Faculty uses the examples of Al Murray and Sacha Baron Cohen.) The threat here is not only to artistic freedom but to the financial wellbeing of the arts in Scotland. All it will take is one comedian up from London telling one outre joke at the Fringe, and Scotland will be seen as too hostile a workplace for artists and too risky an investment for producers and distributors.
Speaking of Titania McGrath, Andrew Doyle has echoed fears that the Bill could lead to possession of the Bible being criminalised, but that’s not how these things work. It would start with the hard cases. Say if planning permission was sought for a new mosque in Glasgow and a Christian fundamentalist sect sets up a campaign in opposition. They distribute some leaflets claiming that Mohammed was a terrorist and Islam is an intolerant religion. These statements are undoubtedly offensive to Muslims and, given the context, may disrupt public order, but they are not on their face criminal. They are an opinion of the sort that, until now, we have been able to challenge and debate.
Under the Hate Crime Bill, it would take only one complaint that these leaflets are ‘threatening’ or ‘abusive’ to set in train the process of prosecution. If just three people are convinced by this complaint – a police officer, the procurator fiscal, and a sheriff – the distributor of these leaflets would be looking at jail time.
Few may have sympathy for anti-mosque campaigners, but the Bill as presently drafted would likely capture far more speech than that. Encouraging and displaying depictions of Mohammed may prove contrary to the provision against inflammatory material. Undoubtedly some depict Islam’s prophet to offend and some Muslims experience this as ‘abusive’, but under the Hate Crime Bill, Police Scotland would be put in an awkward position. In very broad terms, Shia Islam permits drawings of Mohammed provided they are respectful, while Sunni Islam considers any illustration haram. Although there is no way to include this provision consistent with a liberal understanding of free speech, if the Bill were to require intent, the police would at least be able to distinguish between those aiming to abuse Muslims and those whose actions are simply objectionable to certain believers.
Similarly objectionable, perhaps, are those of us out of step with the ever-expanding developments in gender identity politics. I happen to believe that being male or female is a matter of biology rather than gender, and it is now clear to me that expressing this belief will be deemed ‘threatening’ or ‘abusive’ by some who view gender identity as the nucleus of the self. Now, you might think this makes me a ‘transphobe' and deserving of criminal sanction to teach me a lesson, but I have a trump card against you. I’m gay and suspect the logical telos of certain iterations of transgender ideology is that male homosexuality is gender confusion as a result of being wrongly designated male at birth – a problem to be addressed by counselling gay males from an early age that they are suffering from gender dysphoria.
You may be on the lookout to have me hauled before a sheriff for views you consider ‘threatening’ and ‘abusive’, but I will be scrutinising your pronouncements with no less rigour for anything likely to cause hatred to be stirred up against homosexuals. Call it mutually assured cancellation.
Humza Yousaf has created a Hobbesian monster – a law that, rather than restraining our base instincts, encourages a return to our natural state of bellum omnium contra omnes (the war of all against all). The Hate Crime Bill sets up the hierarchy of victimhood as a theatre of war in which ideological campaigns can be waged via lawfare. There will be no need to beat your opponents in debate or at the ballot box when you can simply seek criminal sanction against them and anyone else who espouses their views. The law is being turned into a battlefield for identity politics with sheriffs and judges instructed to act as umpires in the culture war.