Scotland's Hate Crime Act set to disappoint right-wingers desperate to be its 'victims' – Laura Waddell

Culture war arguments that have blown up around the Hate Crime Act bear little relation to the law’s actual effects

There will be plenty acting the fool on April 1, but don’t fall for the clickbait. A lot of attention has been paid to problems of the Scottish Hate Crime Act, not least by those whose favourite pastime is fantasising themselves victims of thoughtcrime. In reality, it’s not the sensational piece of legislation some make it out to be.

Legal academic Dr Andrew Tickell expressed frustration about public misconceptions of the law’s practicalities. He pointed out in the National newspaper that, contrary to fearmongering about the new law criminalising speech, “aggravators don’t create any new ­offences or make any conduct which is currently legal illegal. As the name suggests, they’re attached to existing crimes like assault, vandalism or breach of the peace... recorded, and reflected in sentencing.” In layman’s terms, they are an add-on, or intensifier, to an existing crime – not a newly created one – and they’ve been part of our law for years.

Age, disability and transgender identity have been added along with religious grounds and sexual orientation, bringing Scotland into line with England on the latter two which have been crimes down south since 2006 and 2008 respectively.

The Hate Crime Act may not be as controversial as some people on both sides of the debate appear to think (Picture: Tim Goode/PA)

Protections to free speech

Some legal experts believe fuss about what this law will actually do is overblown. Tickell went on to say that “as any criminal lawyer can tell you, there are already offences on the statute book which are considerably easier to prove than this, which have none of the defences we find in the new hate crime framework, and which represent much more credible threats to freedom of ­expression”. He referred to section 127 of the Communications Act 2003. “Under its ­provisions, you can find yourself arrested and up in court if you send a ‘grossly ­offensive’ message online. There’s no steer from parliament to judges and ­juries about the critical importance of free speech.”

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The Act passed by the Scottish Parliament, however, provides contextualisation to legislators in an amendment, noting “the general ­principle that the right applies to the ­expression of information or ideas that ­offend, shock or disturb”. This highlights how some of the objections to the law might more accurately find their target in campaigning to reform Westminster’s far more ambiguously written Communications Act.

Former Conservative MSP Adam Tomkins, who at the time the Bill was enacted was convenor of the Scottish Parliament’s Justice Committee, has also been critical of public fearmongering about what the Act does and doesn’t do. In a memorable passage from his recent Herald column, Tomkins wrote: “Under the Hate Crime Act, the threshold of criminal liability is not that a victim feels offended (a subjective test), but that a reasonable person would consider the perpetrator’s action or speech to be threatening or abusive (an objective test). Moreover, the Act specifies that ‘discussion or criticism’ of matters relating to sexual orientation, transgender identity, age or disability, is not to be taken as threatening or abusive. For example, asserting that sex is a biological fact or that it is not changed just by virtue of the gender by which someone chooses to identify is not and never can be a hate crime under this legislation.” A line along which there has been much disinformation.

Tomkins added that the new law would disappoint “those transgender activists who think all acts of misgendering are instances of hateful transphobia”, but also “those culture warriors whose nightmarish vision is that the new law poses the greatest threat to free speech since the abolition of the Licensing Act”. Some are shouting it's not an offence to be offended – but this Act doesn’t say it is.

Police’s backfiring 'Hate Monster’

Opposition to the law has also included predictions that Police Scotland will receive an avalanche of time-wasting reports when it comes into effect on April 1. Such an outcome would prove primarily that disinformation about the Act’s potential for malicious use has taken root and a good deal of the blame for that would lie with the fools of public life who’ve sought to sensationalise this particular issue.

Widespread confusion hasn’t been helped either by Police Scotland’s own backfiring public communications, engendering little trust in either the Act or their response to it, in particular the fiercely criticised ‘Hate Monster’ which delivered the line, “then, before ye know it, ye've committed a hate crime”, making it all seem so flippant, as though stirring up hatred might only be a G&T and a tweet away. In whose interest is blurring those lines? Typically those who seek to persuade the general populace that their ordinary ways of being are threatened by clamouring outsiders.

The Act’s title has caught the attention of everyone in the culture war arena from intergalactic edge-lords to right-wing pundits who bear little responsibility for veracity in Scottish politics. What they share from under a broad umbrella are forecasts of fictionalised victimhood at the devious hands of whichever sign-bearer of social progress is causing squeamishness that week. All of which distracts Scotland from a grown-up focus on its own governance and quality of law, and the essential work of understanding who we are on a national level.

Scotland’s Hate Crime Act does have holes, lots of huge glaring ones in the shape of women and girls. Misogynist abuse, like sexual violence and domestic assault, has no place in Scotland yet online misogyny is on the rise. It remains a frustration that such a deep-rooted hatred has been ghettoised from this law, with a separate report and recommendations yet to come. In my eyes, the primary problem with the Scottish Hate Crime Act was a missed opportunity for equalisation; the explicit assertion that everyone is equally protected under the law, expected to shoulder the same responsibilities. The kind of thing a party with the intention of writing a post-independence constitution should be getting right, rather than fumbling.