The new law gives few assurances

I read Lucy Hunter Blackburn on the hate crime bill a day or two ago but not as anxiously as I did just now. Since the new law will apparently apply to anyone anywhere, the sitch is worse than I realized.

The new law gives few assurances for protecting freedom of speech: there’s a small caveat for religion, but not for what have become known as gender-critical beliefs. Those who campaign against gender self-ID fear they will soon be reported to the police. Joanna Cherry KC, a Scottish Nationalist MP, has said she has ‘no doubt’ that the law ‘will be weaponised by trans rights activists to try to silence, and worse still, criminalise women who do not share their beliefs’.

And the women in question don’t have to be Scots or in Scotland.

The law doesn’t just apply to social media posts or newspaper articles. It covers anything said anywhere – even in your own home. Children will in theory be able to report their parents. Scots can inform on each other anonymously, through an expanded network of ‘third-party reporting centres’. The list of centres includes a striking number of university campuses, as well as a Glasgow sex shop and a North Berwick mushroom farm.

It will not be deemed abusive to engage ‘solely’ in ‘discussion or criticism’ about age or any of the other new entries on the list. It is expressly permitted to voice ‘antipathy, dislike, ridicule or insult’ for religion, but – pointedly – not for the other categories on the list. So what if you ridicule police who refer to male rapists as women? That’s anyone’s guess.

And if it’s anyone’s guess…well what if we guess wrong? What if we’re too optimistic?

The way the law will be enforced will come down to police guidance, which remains secret. We have had anxious hints, leaks and whispers from frontline officers who have their own concerns about what lies ahead. The main training resource is a two-hour online course which is ‘not fit for purpose’ according to David Kennedy, general secretary of the Scottish Police Federation. ‘We are asking officers to police a law that they are unprepared for,’ he says. ‘That’s where mistakes will happen.’ He regards the whole project as ‘a recipe for disaster’. One of the leaks from Police Scotland training shows that comics and actors may be in trouble. The guidance tells officers that ‘threatening and abusive’ material can be communicated ‘through public performance of a play’.

Last week, Police Scotland promised Murray Blackburn Mackenzie, the group of policy analysts to which I belong, that we could see the core training package before 1 April. This viewing has been pushed back until after the Act is in force. The country is, even now, still in the dark.

So there’s this law, that will empower cops to arrest people and make their lives hell, and the particulars are being kept secret until after it’s in force.

efore the law was passed, Yousaf promised critics that he would at least give them some input into the post-legislation process. ‘We are in listening mode,’ he said. He shamelessly and unapologetically broke his promise. The Scottish government has instead adopted a bunker approach and locked itself in a room with its allies.

So as far as anyone can tell, a person who is accused of hate speech, fairly or not, stands a good chance of being investigated by Scottish police. And even if their comment is judged not to be a crime, it is still recorded as a non-crime hate incident (NCHI). Police in England have been told to strike from the record complaints that are ‘trivial, irrational, or if there is no basis to conclude that an incident was motivated by hostility’. Twitter spats over gender are offered as an explicit example of what England’s police have no business getting involved in. There is no similar guidance in Scotland.

But! But! As we (or at least I) just learned, the Scottish law applies in England.

Things will go wrong with this Act, as is inevitable when there are attempts to crack down on a problem that is not properly defined. The odds are that clarity will be provided in the end by judges asked to balance Yousaf’s law against freedom of expression with the Human Rights Act. But this will take months, perhaps years.

And people will have been put through hell.

People across Scotland are now discussing whether they should be deleting their old WhatsApp chats, for fear they may be being dredged for evidence of ‘hate’ against a threshold which they have no confidence will always be applied ‘reasonably’.

But now we learn that people everywhere should be discussing that.

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