When Humza Yousaf first proposed his Hate Crime Bill, I compared it to the late, unlamented Offensive Behaviour Act. Similarly rushed through Holyrood by the SNP, it sought to rid Scottish football of sectarian behaviour by, among other things, criminalising the singing of certain songs at matches. The Act didn’t specify which songs and so it was left to the discretion of a police officer overhearing a chant to decide whether or not it would be offensive to a reasonable person. Astonishingly enough, this didn’t work out and such was the fan and legal profession backlash that the Act was eventually repealed — in the teeth of SNP opposition.
The Hate Crime Bill was, in part, their revenge and it was of a nuclear variety. Don’t like us arbitrarily policing speech at football matches? Fine, we’ll classify the whole country as a football match. The Bill, which passed what passes for a parliament on Thursday, is weaker than the one introduced but it is no less sinister. It is an authoritarian smash-and-grab on freedom of speech, extending the power of the state to regulate and punish expression far beyond consensus functions such as maintaining public order and deterring incitement to violence.
The legislation creates a sweeping new offence of ‘stirring up hatred’. Liable for prosecution will be anyone who ‘behaves in a manner that a reasonable person would consider to be threatening, abusive or insulting’ — or communicates such material — if he or she ‘intends to stir up hatred against a group of persons based on the group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins’, or if ‘a reasonable person would consider the behaviour or the communication of the material to be likely to result in hatred being stirred up against such a group’.
The same offence applies for hatred based on ‘age; disability; religion or, in the case of a social or cultural group, perceived religious affiliation; sexual orientation; transgender identity; variations in sex characteristics’, except for these categories only ‘threatening’ or ‘abusive’ language will be criminal. Yousaf freely admits that his law will even apply to utterances made in the privacy of the home. Penalties range from fines to seven years in prison.
The sheer scope of the offence cannot be overstated. The definition of ‘communicating’ hatred, for example, includes ‘displaying, publishing or distributing’ material, ‘giving, sending, showing or playing’ material for another person, or ‘making the material available to another person in any other way’. It will be for sheriffs and judges to determine but that definition could very well capture the boomer who hits the ‘share’ button on a grim Facebook meme about Muslim demography as readily as the skinhead who distributes neo-Nazi pamphlets on Jewish racial inferiority.
While some of the more outlandish provisions in the original Bill have been excised — including a section on prosecuting actors and directors of stage plays deemed to ‘stir up hatred’ — this law remains to its core a radical assault on liberal principles. It is a reflection of the insurgent ideology of coercive progressivism.
As I have rehearsed before, there is nothing especially controversial in Part One of the legislation, which simply introduces sentencing aggravators for pre-existing crimes when they are motivated by hatred of a protected characteristic. So the offender who punches a haredi man while telling him to go home to Israel will potentially get harsher punishment than the offender who punches him in a dispute over a car. A violent antisemite needs to be deterred more than a garden variety thug because he wants to punch more Jews in all contexts — and, more than likely, he will.
Had the Bill limited itself to this — and to Part 4, which abolishes the offence of blasphemy — it would have passed Holyrood in record time and likely unanimously. Yousaf, however, sees it as his mission not only to stamp out hatred in Scotland but to stamp out the ideas that underlie it. It’s a noble sentiment in the abstract but in practice it annexes to the state and its prosecutorial organs what is properly the responsibility of social norms and community standards. Post-liberals riposte that these pressures have failed to eradicate bigotry and they’re right: a free society is a society in which you are free to hate, to express that hatred, and to encourage others to share it. Advocating for such a society opens liberals to demagoguery from authoritarians but the principle must be defended nonetheless.
That will only become more difficult as academic radicalism seeps further into the mainstream, in particular critical race theory and the proposition that speech and silence alike are a form of violence. Arguing for the speech rights of bigots was already a risky business, but now almost everyone is a bigot — either for espousing views wholly uncontroversial five minutes ago or because of an immutable characteristic such as their race or ethnicity. The culture’s embrace of identity essentialism, especially in race and gender, not only requires us to memory-hole several decades of progress but to pretend that radically new definitions of bigotry are unchanged and uncontested. Although identity politics takes little interest in material conditions, the ‘ism’ it most closely resembles is communism: it is the ideological enforcement of a lie.
One of those lies is that sex and gender can be conflated on the basis of self-identification. That is why the Bill does not list sex as a protected characteristic but does include cross-dressing under the category of ‘transgender identity’. (The ladies do, however, get a ‘working group on misogyny’, chaired by a QC who has described herself as ‘the pin-up of the transgender movement’.) As with so many of Holyrood’s assaults on liberty, all this is being done without regard to public opinion. Holyrood is every bit as remote from Hamilton as Westminster is from Hull.
Scots will now enjoy measurably less expressive liberty than the rest of the country, whether through commonplace prosecution or because the law’s mere existence produces a chilling effect. Of all the ways in which the SNP has undermined British identity in Scotland, foreclosing on liberties considered a hallmark of Britain’s social contract is surely the most insidious. Since it comes at a broader cultural moment when freedom of speech is falling out of favour with important elites, it seems proper to place the response to the Bill in a larger, national context. Speech liberals should coalesce around the most promising means of safeguarding expressive liberty in UK-wide law. Preston Byrne’s United Kingdom Free Speech Act is one way to go, while some might prefer a fully-fledged UK Bill of Rights that defines other rights and liberties too. The latter approach would take us into codified constitution territory with all the questions that would bring about the European Convention on Human Rights, devolution and Northern Ireland.
Devolution has undermined the structural integrity of the United Kingdom but now it has allowed the enemies of a free society to strike at basic liberties. Because those liberties are fundamental and because this law will inspire authoritarians elsewhere in the country, the answer has to be pan-UK and unafraid of Parliament upholding liberty across all four nations. At Holyrood, efforts must turn to repealing or substantially amending the eventual Act; at Westminster, to reasserting in law throughout the UK ‘the liberty to know, to utter, and to argue freely according to conscience’.