How Scotland became an Orwellian nightmare

Critics say Humza Yousaf’s new law is a state-sponsored assault on free speech with alleged incidents going on record even with no evidence

Source - Daily Telegraph 30/03/23

'We are looking at an army of local spies potentially taking anonymous reports from other local spies and passing them on to the police'

Imagine living in a world where sitting in your own living room and saying “men can’t be women” could result in the police logging a “hate incident” against your name.

Imagine, too, that your legally protected right to express such an opinion counted for nothing because all that mattered was whether the person who heard you perceived it to be offensive.

If you live in Scotland, this is the world you will be living in as of Monday. And no, it’s not an April Fool’s prank by the Scottish Government, despite the date when it comes into force.

The Hate and Public Order (Scotland) Act will, according to its critics, be a state-sponsored assault on free speech with sinister parallels to the Stasi in East Germany.

Billed as a necessary legislative update to a hotch-potch of anti-hate laws (it finally abolishes the offence of blasphemy, last prosecuted in 1843) it extends the offence of stirring up hatred to cover not only race and religion but also age, disability, sexual orientation, transgender identity and “variations in sex characteristics”.

Politicians have warned that the new law will be “weaponised” by the radical trans lobby to criminalise anyone who states their belief in the immutability of someone’s birth sex.

Meanwhile, The Telegraph has been told that Police Scotland – which has just announced it will no longer investigate certain low-level crimes – is diverting resources so it can investigate the expected influx of accusatory phone calls it will receive from those offended by other people’s opinions.

The force has promised to investigate every hate crime complaint it receives, and if the complainant (or victim, as they are officially referred to) insists they were upset by something they perceived to be a hate crime, it will be logged as a non-crime hate incident (NCHI) even if there is not a shred of evidence of any crime being committed.

Little wonder that women’s rights campaigners fear that the new law will be used by trans radicals to settle scores and silence anyone who dares to challenge their world view.  

If George Orwell was still around, he could perhaps write a book about it and call it Twenty Twenty-Four. 

There is no Big Brother in this story, though: only members of the public who are being encouraged to call the police if they are upset that someone doesn’t agree with them. Or, if they want to make an anonymous complaint, they can do so through a network of “Hate Crime Third Party Reporting Centres”, which include university campuses, a sex shop in Glasgow and a salmon factory in Berwickshire (a mushroom farm in North Berwick was removed from the list after a certain amount of ridicule in the media).

Susan Smith, a director of the feminist campaign group For Women Scotland, paints a bleak picture of the country Scotland is about to become.

She says: “We are looking at an army of local spies potentially taking anonymous reports from other local spies and passing them on to the police. Some people are very gleeful about this and they’re going to report everyone they don’t like. It’s very Stasi and it’s absolute insanity.”

One of the third party reporting centres is the sex shop Luke & Jack, marketed as “passionate purveyors of pleasure products…a safe space for LGBTQI folk in Glasgow”.

As Smith discusses the prospect of staff there taking down details of alleged crimes like pseudo policemen she begins to laugh, because saying it out loud sounds so ridiculous – but this is the situation Scotland has arrived at under the SNP.

Dr Michael Foran, lecturer in public law at the University of Glasgow, says the new legislation “brings the criminal law into your home” even when you are having private conversations.

He says: “The classic example might be a teenager who is particularly upset that their parents don’t agree with them on something like trans rights and they anonymously report them for a hate crime.”

Humza Yousaf, the First Minister of Scotland, who has championed the new law after introducing it when he was Justice Secretary, has insisted that the bar for criminality will be set so high that no-one who is simply expressing an opinion will be convicted of a crime. 

Critics of the new law say that is beside the point. The legislation gives police the powers to seize personal property such as computers and mobile phones to search for evidence of criminality when a complaint of hate crime is made, and to hold onto them until a decision is made on whether to prosecute or not, which could take many months. They might also require people accused of hate crimes to attend police stations to be interviewed or to give statements, or even turn up at their house. As the old saying goes, the process is the punishment.

One person who knows exactly what it is like to end up in a police file for simply expressing an opinion is Conservative MSP Murdo Fraser.

Last November he tweeted about the Scottish Government’s non-binary equality action plan, saying: “Choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat. I’m not sure governments should be spending time on action plans for either.”

A member of the public complained to the police, who decided no crime had been committed but recorded it as a “hate incident”. Fraser only found this out when a separate complaint was made to the Scottish Parliament’s ethical standards commissioner citing the police reference number for the hate incident.

Fraser says: “We don’t know how the police and the courts are going to handle complaints under the new Act, which means people don’t know what they can and can’t say, which impacts on free speech.

“Because the police have said they will investigate every incident you can see this whole system being weaponised by individuals who want to make spurious complaints. The complaint against me was from a trans rights activist using it to try to close down debate.”

The Scottish government has said it records non-crime hate incidents to gather data and insists incidents are not logged in the name of the alleged perpetrator.

Fraser is doubtful, pointing out that “when I complained to the police about it they were able to find the incident” without any difficulty. He also suspects that in future, such incidents could be dredged up as part of enhanced disclosure and barring service (DBS) checks that could spell trouble for people applying for jobs like teaching.

Fraser believes Police Scotland are acting illegally and in breach of the Human Rights Act and the Data Protection Act, citing the fact that police in England and Wales have stopped recording non crime hate incidents after a legal challenge.

Conservative MSP Murdo Fraser was investigated after he tweeted in criticism of the Scottish Government's Non-Binary Equality Action Plan

Conservative MSP Murdo Fraser was investigated after he tweeted about the Scottish Government's Non-Binary Equality Action Plan CREDIT: Getty

Tony Lenehan KC, the president of the Faculty of Advocates Criminal Bar Association, a representative body for barristers in Scotland, says merely being accused of a hate crime could be “life changing” for people who have done nothing wrong.

He says: “This could change your whole perception of how you fit into society if you see yourself as someone who is considered a potential criminal. I have colleagues who have gone through a complaints process because they have addressed a jury as ‘ladies and gentlemen’ and someone has found that offensive. This is going to be a thousand times worse. 

“Imagine the horror of being brought into a police station and questioned. I haven’t met anyone in the criminal justice system who applauds this law.”

Lenehan is among those who argue that the new law is totally unnecessary, because existing laws already provide ample protection against genuine hate crimes.

He points to data compiled by Scotland’s Crown Office (the equivalent of the Crown Prosecution Service) that shows total reported hate crime to be below what it was a decade ago, and questions what is behind the new legislation.

“I think it’s being driven by the warm glow that virtue signalling brings rather than any genuine regard for a need within the criminal justice system,” he says. “This government has previous form for virtue signalling by aligning itself with certain groups.”

This belief appears to be borne out by “Hate Hurts” advertisements being pumped out by the Scottish Government telling the public “if you witness a hate crime, report it”. Is the SNP advertising the new law simply to gain political advantage rather than to meet a genuine need?

Despite being so stretched that they are already refusing to investigate crimes including thefts not captured by CCTV, Police Scotland has also been running a campaign urging the public to use the new law, with the now infamous cartoon “hate monster” that “makes you want to vent your anger just ’cause folk look or act different from you…then before you know it, you’ve committed a hate crime”.

Calum Steele, former general secretary of the Scottish Police Federation, which represents rank and file officers, is among those who fear that the police will be swamped.

He says: “I know from colleagues that they are reallocating resources from elsewhere to be able to deal with the influx of reported hate speech.”

Part of the problem, he says, is that there is nothing to deter malicious complaints made by people wanting to settle scores with each other, because: “It’s difficult to imagine how you could prove someone was wasting police time when the whole thing is based entirely on their perception rather than evidence.”

Steele is also concerned that treating law-abiding people as suspects will damage the contract between the public and the police known as policing by consent.

One of those who expects to be in the firing line on Monday is Lucy Hunter Blackburn, a gender-critical writer and one third of Murray Blackburn Mackenzie, a firm of policy analysts based in Edinburgh.

“This is about the use of state powers and the road to hell being paved with good intentions,” she says. “I am a middle-class, lefty liberal and I am 99 per cent sure I’m going to get reported to the police when Monday comes.

“I don’t think we are going to see prisons stuffed with [gender-critical] women but I think it will be used to bully people. People are already looking over their shoulders so you can see the chilling effect this is having on free speech.”

The Scottish Government insists that free speech is protected under the new law, and under separate freedom of expression laws; whether or not that is true might ultimately have to be decided by the courts.

The doubters cite the fact that the new Act expressly permits people to voice “antipathy, dislike, ridicule or insult” when it comes to religion (something religious groups were keen to include, in order to allow robust debate of faith matters) but there is no such carve-out for any of the other protected characteristics covered by the law.

Legal scholars have argued that the absence of this caveat for transgender identity, among other characteristics, could reasonably be interpreted to mean that it is not permissible to express antipathy, dislike, ridicule or insult for the other categories. Does this mean that expressing “dislike” for someone’s age or transgender identity could be a crime?

Dr Foran says part of the problem is that the new law is vague.

He says: “Ordinarily you might assume that ridiculing someone would not cross the threshold [of criminality] but because it specifically says you can ridicule religion it suggests you can’t ridicule other things, and that raises questions for freedom of expression.

“It also creates new criminal offences around stirring up hatred, which was originally confined to race but which is now extended to trans identity among other things.

“But it doesn’t introduce an equivalent crime of stirring up hatred on the basis of someone’s philosophical belief, such as gender critical beliefs. So encouraging people to punch trans people is covered by the law but encouraging someone to punch Terfs (trans-exclusionary radical feminists) isn’t.” Susan Smith argues that this creates a “hierarchy” of rights, in which the law places the rights of transgender people above the rights of gender critical women.

The Winston Smith of this modern-day Orwellian saga is the author JK Rowling, who has incensed the radical trans lobby by repeatedly insisting men cannot be women.

Former prosecutor Rajan Barot has advised her to delete her posts on Twitter which, he says, “most likely contravene the new law”, to which Rowling has defiantly replied: “If you genuinely imagine I’d delete posts calling a man a man, so as not to be prosecuted under this ludicrous law, stand by for the mother of all April Fools’ jokes.”

The author JK Rowling has been advised to delete her Twitter posts which the new law could scrutinise

The author JK Rowling has been advised to delete her Twitter posts which the new law could scrutinise CREDIT: Samir Hussein

Police Scotland, however, has a different idea of who is most likely to fall foul of the new law. On its website, it informs the public that: “We know young men aged 18-30 are most likely to commit hate crime, particularly those from socially excluded communities who are heavily influenced by their peers. They may have deep-rooted feelings of being socially and economically disadvantaged, combined with ideas about white male entitlement.”

Blackburn says this is a verbose way of saying white working class, the sort of people who have been let down by 17 years of SNP government and its failures on education, health and drug addiction.

She says: “Schools are running out of exercise books, library funding has been cut, so things that bring people together are being cut and the SNP seems to think that the way to build a more tolerant society is by calling the police.”

Another category of people who might find themselves being reported for hate crimes is comedians. 

Police Scotland is yet to publish the guidance it is giving to its officers on how to interpret and implement the new law, but one Scottish newspaper obtained part of the guidance which said that the “public performance of a play” could fall foul of the law if it includes “threatening and abusive” material.

Police Scotland issued a statement insisting it wasn’t “instructing officers to target comedians, or any other people or groups” but Lenehan and others are not convinced.

On April 1, a group called Comedy Unleashed is putting on a show in Edinburgh that it says will include “some especially offensive stand-up” in order to test the new law. Tickets for it reportedly sold out in nine minutes.

Andrew Doyle, co-founder of the group, told The Telegraph’s Dominic Cavendish: “We’ve always known this could affect comedians. Humza Yousaf was asked about this concept of stirring up hatred through the medium of theatre and he said it was conceivable that neo-Nazis might stage a play in order to radicalise people, which shows how little he understands neo-Nazis.”

Simon Evans, who performed at last year’s Edinburgh festival, said: “I chucked in a couple of lines – referring to Nicola Sturgeon as a perfectly nice chap and Humza Yousaf as ‘formerly Cat Stevens’. I think I’d now hesitate to do that material. 

“I don’t have the political nous and youthful energy to take the establishment on. I like to earn the money that comes from corporate functions. And the last thing you want is someone from Human Resources running you through a police check before they book you.”

A Scottish Government spokesman said the new offences contained in the Act “have a higher threshold for a crime to be committed than the long-standing offence of stirring up racial hatred, which has been in place since 1986. “There are protections in the new Act for individuals’ rights in respect to freedom of expression.”

A spokesman for Police Scotland said the recording of non-crime hate incidents had been in place for many years following the recommendations of the Macpherson Report into the murder of Stephen Lawrence, and that: “Recording is victim-focused and officers will aim to keep the information recorded in a hate incident anonymised where possible.”

The spokesman said police were trained to balance human rights against individual laws, and on the subject of third party reporting centres said they provide a safe space for people to make a report when they might not feel comfortable doing so to the police.

The spokesman added: “Hate crime and discrimination of any kind is deplorable and entirely unacceptable. We will investigate every report.”