Debate is more effective than pious hate laws

Scotland’s new act is a clumsy error - sometimes we’re better off simply listening to ideas, even if they upset us, says Hugo Rifkind

Halfway between a furry condom and a creature that might once have advertised Sugar Puffs, the Hate Monster was a cartoon character unveiled by Police Scotland almost a year ago. “He’ll make ye want tae have a go at somebody,” warned the heavily accented voiceover. “Then, before ye know it, ye’ve committed a hate crime.” The idea was that, inside us all, there dwells a fearsome, shaggy monster. As if we are all, in our own little way, the lighthouse from Fraggle Rock.

For ages, nobody noticed. Then, about a month ago, the Hate Monster came under attack. Because he was ridiculous? Partly. Also, though, because of precisely whom this campaign seemed to be tilted at: working-class young men. “The suggestion that people from deprived areas are more likely to commit alleged hate crimes is grossly offensive,” fumed the Scottish Tory justice spokesman Russell Findlay. As in, the Hate Monster was spreading hate. Eek! Quietly, Police Scotland shuffled him away into retirement.

As of yesterday (Monday), in Scotland it is an offence to whip up “threatening or abusive behaviour which is intended to stir up hatred” on the basis of race, age, disability, colour, religion, ethnicity, sexual orientation or transgender identity. This is probably not so broad as to put the Shaggy Phallus himself at risk of prosecution, so that’s a relief, at least. Yet it is a bottomless, pious, unserious law.

Defending it, the first minister Humza Yousaf has wound up in conflict not only with Scotland’s own JK Rowling but also with figures such as Elon Musk and the US podcaster Joe Rogan. Essentially, this is government as a self-righteous Twitter spat. And it’s a mess.

Yousaf, though, is unflinching. “I’m very confident we’ve got a robust piece of legislation that will protect people against the rising tide of hatred we see right across the world,” he said last week. In that single statement, you see the whole thought process. It’s a legislative purity spiral. As in, if something is bad, then government should do something about it. Oppose that, and you’re bad too.

It should be no surprise that this debate has become dominated by the issue of transgenderism because, these days, which one doesn’t? According to campaigners such as Rowling and the SNP’s own Joanna Cherry, the law could be used to stifle debate on the concept of gender altogether. I expect this is true. Team Yousaf points out that the new law merely expands older laws about hate crimes based on race. This is also true, but race, gender and religion are different kettles of fish. The former, always, is about people. The latter two involve ideas.

JK Rowling challenged Scotland’s new hate crime law in a series of social media posts.

Has Scotland banned the critique of ideas? Can Scots still discuss what a woman is, or the ethics of kosher or halal butchery? When the SNP’s former finance minister Kate Forbes ran against Yousaf, she was widely attacked for being anti-abortion; a stance that stemmed from her membership of an evangelical church. Would that now be hate speech, too? Nobody seems sure.

From the moment this law was drafted in 2020, comedians, actors and authors worried that it would limit what they could write or say. The SNP says not, but not why not. Leaked police training materials suggest crimes could be committed “through public performance of a play”. Last month, Police Scotland insisted that it was “not instructing officers to target actors, comedians or any other people or groups”. But a law is a law, so why should it be up to them?

For their part, Yousaf’s colleagues now sound like people who have wandered absent-mindedly into another room and then forgotten why they went there. According to the victims and community safety minister Siobhian Brown, the new law will “not necessarily” criminalise anything that wasn’t criminal already. Will it? Won’t it? If not, what’s the point? Perhaps SNP politicians are now stuck with an unpopular policy that won’t work, having been driven there by the logic of their own previous positions. Maybe not for the first time.

Scottish First Minister Humza Yousaf. Picture: Jeff J Mitchell/Getty Images

It may be tempting to regard Scotland’s hate crime woes as a debacle that could only hit the illiberal left; a nadir of virtue signalling wokeism, and so on. But I’d urge you to cross both the Scottish border and the political divide, and ponder the Conservatives’ equally flailing attempt to crack down on extremism. It would be dishonest to pretend that they’re the same; Michael Gove intends to criminalise nobody, merely to block certain groups from receiving funding or meeting officials.

Recall also, though, that it followed Rishi Sunak’s own speech about extremism, in which he spoke of hate speech at Gaza protests that “demands a response not just from government, but from all of us” and urged police to take a tougher line. Both, together, prompted an open letter not only from various counter-extremism experts but also from three Conservative former home secretaries - Priti Patel, Sajid Javid and Amber Rudd - warning of the dangers of overreach.

It is, indeed, a danger. On Gaza protests, in particular, I can think of an awful lot of language I find frightening and that I’d condemn, and that I fervently wish people wouldn’t use. Yet call me a snivelling liberal coward - there’s no law against it yet - but I can think of very little that should be cause for prosecution. The moment we lose sight of that difference, the more likely we are to stumble into Yousaf’s fiasco ourselves, albeit from the opposite direction.

Whatever our politics, we need to be wary of the inclination to aim the crushing might of the law at ideas and opinions that, however much they might upset us, we’d be far better off hearing, debating and perhaps just putting up with. Because we all, I think, have that inclination, somewhere deep inside. It smirks and lurks. You might even call it a monster.

The Times