One week on and the Hate Crime Act is already a disaster for Scotland, causing Scotland serious reputational harm that leaves us collectively open to ridicule and shame. But what can be done?

There is no escaping it – despite all the warnings from people of many political sympathies or none, the likes of feminist columnist Susan Dalgety, Tory MSP Murdo Fraser, former SNP deputy leader Jim Sillars and Labour stalwart, Ian Smart – the Hate Crime Act has from day one of its introduction shown itself to be especially bad law.

Deepening division

The Hate Crime Act incentivises belligerent activistst to lodge formal complaints to the police (Picture: John Devlin)

Rather than reducing hate by providing a code of behaviour that could bring harmony between people of competing opinions, the law is instead making matters far worse.

It is deepening division in Scotland because it incentivises belligerent activists whose worldview relies upon identity politics to lodge formal complaints to the police. Their modus operandi has been – from the advent of the debate around gender politics – to use in-your-face confrontation to intimidate and shut down the voices opposing them.

From placards suggesting those opposing the GRR Bill should be decapitated to threatening behaviour that has required police intervention at demonstrations, women professing to define themselves as women in their own terms – unexceptionally to most people as adult biological females – have been targeted.

In such threatening circumstances it was undeniably brave that the internationally acclaimed and respected author JK Rowling should restate her not unusual but commonplace belief about what defines a woman – and in so doing challenge Police Scotland to show how it will enforce the Hate Crime Act.

By her actions she has done us all a service; for if Police Scotland now follows its approach of dismissing complaints against JK Rowling in a consistent manner it should discourage vexatious and mendacious complaints against not only her but also less well known Scots. This serves to counteract the perverse incentive the Hate Crime Act gives to encouraging complaints and will therefore dampen down division and reduce hate.

Nevertheless Scotland remains beyond the looking glass; Police Scotland has (we are led to believe) not recorded the thousands of hate crime complaints against First Minister Humza Yousaf or JK Rowling as “Non Hate Crime Incidents” – yet complaints of a potential hate crime have been made, making them an incident and therefore under current Police Scotland procedures requiring of being recorded as “NHCIs”.

Astonishingly, Police Scotland is now also saying the hate crime complaint made against Murdo Fraser MSP, but dismissed by its officers, has not been recorded as a non-hate crime incident against Murdo Fraser – yet we know that such an NHCI exists, as it was used as the basis for the same complainant to complain to the Ethical Standards Commissioner.

Ignorant and incompetent

This begs the obvious question, are there thousands of complaints against Yousaf and JK Rowling that led similarly to thousands of NHCIs – but not recorded “against” Yousaf and Rowling – but similarly given a complaint number and stored on Police Scotland’s data files?

If not, then why was Murdo Fraser treated differently?

If so, what use can be made of them by the police or any other people in authority?

The enforcement of the Hate Crime Act is demonstrating just how ignorant and incompetent too many of our politicians are in Holyrood.

We have been here before with misguided legislation that displays authoritarian over-reach from those who deign to govern us.

There was the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 that was passed by the SNP’s overall majority in Holyrood – and only repealed when that majority was lost.

There was the Children and Young People (Scotland) Act 2014, that included the appointment of a state guardian or “named person” for people from birth to the age of eighteen. Aspects of the Act were ruled unlawful only after being challenged successfully in the UK Supreme Court, forcing the SNP to announce, grudgingly, it would repeal the named person provisions.

Only last year there was the Gender Recognition Reform (Scotland) Bill that was struck down and refused Royal Assent due to the intervention of the UK Government using its Section 35 powers and defending that approach successfully against the SNP/Green Scottish Government appeal in the Court of Session.

Where then do we go with the Hate Crime Bill? Will Holyrood repeal it – certainly not yet, after all, every party voted in its favour except the Conservatives. Scottish Labour leader Anas Sarwar has been silent – will Labour work with other parties to repeal it?

If the SNP suffers a humiliating defeat in Scotland in the General Election – and chooses to remove Humza Yousaf as leader – would a new SNP leader commit to repealing it?

Is there a potential SNP leader who would break with the Greens and change the SNP position to get rid of the hated Hate Crime Bill? Kate Forbes, maybe, or someone wo is currently silent?

Do we have to wait until the next Holyrood election for a new alliance of parties that will demand the Hate Crime Act must go? Two more years of the unworkable and damaging law?

Or is there a legal case for it being struck down in court – it already has Royal Assent so a Section 35 order cannot apply. Could Westminster save Scotland from a Holyrood law if unintended consequences show it applies to freedom of speech across the whole of the UK?

When, after what might be a good number of years, Scotland finally gets rid of the Scottish Parliament’s Hate Crime Act, we shall also need to face up to why it happened, what caused Holyrood to fail us – and what changes must be made to make sure such a world-shaming catastrophe does not happen again.

For now, the one common factor is the SNP pursuing bad laws for ideological purposes no matter what the outcomes.

Brian Monteith is a former member of the Scottish and European parliaments

Hate crime law puts devolution in the dock,charged with ignorance and incompetence - Brian Monteith

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