Scotland's Hate Crime Act: David Hume would be horrified by SNP's Orwellian attempt to suppress ‘wrongthink’ – Toby Young

The Free Speech Union has lawyers on standby to help any members hauled in for questioning over the Hate Crime Act, writes its director, the journalist and author Toby Young

The thinker that impressed me the most when I was a doing Philosophy, Politics and Economics at university was David Hume. Here was reason in its purest form, mercilessly scything its way through the brambles. Reading his Treatise of Human Nature was a bracing experience.

I wonder what he would have made of the SNP’s new hate crime law? Would he have been questioned under caution by Police Scotland for his remarks about ‘negroes’ in On National Character? He might have pleaded mitigation, pointing to his condemnation of slavery in ancient Rome, but that didn’t stop Edinburgh University scrubbing his name from the Hume Tower in 2020. At the very least, his comments would have been recorded as a “non-crime hate incident” (NCHI).

The reason for bringing up Hume is to highlight how far the country has fallen since the Scottish Enlightenment. That extraordinary flowering of intellectual achievement, with Scottish thinkers rivalling the French philosophes for their contributions to science, philosophy and economics, was critically dependent on the free exchange of arguments and ideas. Hume could set out his critique of miracles in the public square without fear of being persecuted by the Christian authorities.

Thanks to the SNP, that cultural legacy has all but disappeared in contemporary Scotland. Free speech has been on life support for several years, but with the activation of the Hate Crime and Public Order (Scotland) Act on April 1, the government has finally pulled the plug.

‘Safe space’ to dob in neighbours

At the Free Speech Union, the advocacy group I created in 2020, we have been preparing for this moment for some time. When the Act received Royal Assent three years ago, we set up an office in Edinburgh, appointed a local man to be its director and created a Scottish Advisory Council consisting of prominent public figures committed to freedom of expression.

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More recently, we’ve been helping Murdo Fraser MSP in his battle against Police Scotland, which recorded a tweet of his criticising the SNP’s “Non-Binary Equality Action Plan” as an NCHI. We’ve promised to back a lawsuit Mr Fraser has threatened to bring against the police if they don’t agree to delete it and – more importantly – abandon the national guidance they’re following, whereby any report of a hate crime, however vexatious, is automatically recorded as an NCHI.

That’s significant because Police Scotland have created 411 ‘third-party reporting centres’ where people can file complaints anonymously – a ‘safe space’ in which to dob in your neighbours. We anticipate that tens of thousands of hate crimes will be reported in the next months, particularly as Police Scotland have said that, under the new law, “threatening or abusive material” communicated via social media posts and “through public performance of a play”, which includes stand-up comedy, could be a “hate crime”.

I expect the vast majority of these complaints won’t go anywhere, but unless Mr Fraser prevails the police will painstakingly record every one as a hate incident. That’s alarming because these ‘non-crimes’ can show up in enhanced criminal record checks, preventing you getting a job as a teacher or a carer.

Incompatible with human rights

Similar guidance was introduced by the College of Policing in England and Wales in 2014 and the Free Speech Union estimates 250,000 hate incidents have been recorded south of the border. That’s an average of 65 a day and helps explain why the police haven’t solved a single burglary in just under half of all neighbourhoods in England and Wales in the past three years. They’re too busy policing our tweets to police our streets.

But this guidance was revised last year, following a successful legal challenge by Harry Miller, an ex-copper, also backed by the FSU. The High Court concluded that automatically recording reports of hate crimes as NCHIs was having a chilling effect on free speech and was incompatible with the European Convention on Human Rights. Now, these designations are only made in exceptional circumstances, and we expect we’d secure a similar verdict in the Court of Session.

Apart from everything else, such meticulous record keeping won’t be good for Scotland’s image. As the ex-Scottish Police Federation chief Calum Steele says: “Within a very short period of time we will have ‘data’ suggesting Scotland is one of the most ‘hateful’ countries on Earth.”

Perhaps I’m being too sanguine about what percentage of complaints will end up in court. Will ‘misgendering’ trans people on Twitter/X be an offence under the new law? Yes, according to Rajan Barot, a former prosecutor, who recently advised JK Rowling to “start deleting” her tweets about a trans activist since they would “most likely contravene the new law”. She has said she will do no such thing, which raises the spectre of Scotland’s most famous woman spending Easter Monday in an Edinburgh police station.

Oven-ready hate crime bills in rest of UK

Just in case Police Scotland do engage in such zealous over-enforcement, the Free Speech Union has put an arrangement in place with one of Scotland’s top legal firms so we can have a solicitor on hand if any of our members are hauled in for questioning.

Our anxiety about the new law isn’t confined to the people of Scotland. It’s really important to challenge it because similar laws are poised to be introduced in the rest of the UK in the next 12 months. There are oven-ready Hate Crime and Public Order Bills in both England and Wales (as drawn up by the Law Commission of England and Wales) and Northern Ireland (as drawn up by the Ministry of Justice).

I have no doubt that Hume would be horrified by this Orwellian attempt to suppress ‘wrongthink’. In the 18th century, he and the other leading lights of the Scottish Enlightenment showed the world just what was possible in a culture that welcomed new ways of thinking. Once again, it falls on the people of Scotland to show the rest of us the way.

Toby Young is director of the Free Speech Union, freespeechunion.org

You can become a member of the Free Speech Union here and donate to its dedicated Scottish GoFundMe here.