“Humza Yousaf, good Scots name,” the 63-year-old former farmer had tweeted shortly after the Bataclan massacre in Paris in 2015. “I am sure he is 90% backing Muslim killers. Be having a whip round for terrorist families soon."
“I remember the blow to my stomach when I saw it,” the Justice Secretary tells me. “I felt it right in the gut because I have only ever worked for peace.” Yousaf had just posted his solidarity with the victims when Smith’s message landed. “#JeSuisParis”, the MSP had written, like everyone else. The next day he sang the Marseillaise outside the Buchanan Galleries in Glasgow. ”For this man to suggest my loyalty would be to anyone other than those affected was devastating.” Smith was convicted of behaving in a threatening or abusive manner aggravated by religious prejudice and will be sentenced next month. So how does that feel? “It’s validation. It means a lot,” he says.
Yousaf is reflecting on the impact of such bile from his home on Tayside. In a few days time, he will appear again before the Justice Committee which has been taking evidence on his Hate Crime Bill. The Bill, which extends long-standing racial protections to other minority groups, has proved controversial and a lightning rod in the ongoing Culture War. For reasons we will discuss, it has generated 2,000 responses from disparate parties, including religious leaders, lawyers, journalists, artists and the Scottish Police Federation.
Yousaf has already performed one U-turn, with - he later reveals - a second on the way. But before we get into all that, it makes sense to explore what hate crime means; and who better to ask than a man who receives abusive and threatening messages every week.
One recent troll claimed to have seen Yousaf out shopping at his local supermarket. Another referenced the miscarriages he and his wife have suffered, signing off a racist email with the words: “I hope you end up with your dead children.”.
“I am 99% sure the vast majority of the people who make death threats against me and my family are just keyboard warriors,“ he says, “but that 1% of my brain worries and it’s enough to keep me awake at night.”
Of course, any form of abuse will take its toll. But abuse targeted at race, religion, sexuality and other identities strikes at the very core of your being.
“My faith and my ethnicity are such an important part of me - I can’t divorce them from who I am,” Yousaf says. “But, also, much of the racial/religious hatred directed towards me questions my loyalty to my country.
“I am very proud of my roots, and Pakistan, my father’s country, will always have a special place in my heart, but I don’t have any other home but Scotland.
“People can disagree with the means, the methods, the ideology, but I have only ever worked for this country. To have people tell me I am an extremist or that I want to introduce Sharia Law because I am a Muslim, or to make videos and blogs that incite hatred towards me, is pretty tough to take.“
The motivation for the new Hate Crime Bill is straight forward. It aims to simplify and clarify the law by bringing together the various existing hate crime offences (many of them contained in the Public Order Act 1986) into a single piece of legislation. But it also extends protections currently afforded to race to other groups.
The proposed legislation is divided into two parts. The first involves “aggravators” attached to crimes, such as assault, which have been driven by hatred towards one of a number of minority groups. Attaching an aggravator ensures the motivation for the offence is recorded and generally inflates the sentence. These aggravators already exist in relation to race, religion, sexual orientation, disability and transgender identity; the new Bill merely adds age to the list of protected characteristics.
The second, and more controversial, part of the Bill involves “stirring up offences”, initally defined as "behaving in a threatening or abusive manner, or communicating threatening or abusive material to another person with the intention of stirring up hatred or where it is likely to stir up hatred.” This offence, which already exists in relation to race, was to be extended to the other protected groups.
In September, however, under mounting pressure, Yousaf agreed to remove the “likely to” element of the offence from everything but race.
Statistics show hate crime continues to be a significant factor in Scotland. Last year there was a year-on-year increase in aggravated charges against all protected groups (although race-related charges were significantly down from their 2011/12 peak).
So why is the Bill proving quite so heated? Well, some of it is a question of timing. We are in the the grip of a Culture War. For several years, the two sides have clashed. The right to cause offence has been pitted against the right to live your life free from hate-speech. Words such as “woke”, “snowflakes” and “cancel culture” have entered the lexicon.
“You have to accept that, with an issue as fundamental as freedom of speech, people are going to guard that protection, and rightly so,” says Yousaf. ”If anything looks like it might impinge on that, then people have to be convinced because it goes to the core of everything we do.”
Recently, the hostility has been amplified by the row over the Scottish government’s Gender Recognition Act, with accusations of abuse and the shutting down of debate on both sides.
Some of those who oppose the GRA believe the Hate Crime Bill could be used to criminalise opinions, such as the belief that biological sex is immutable.
“It would be foolish to pretend the debate around GRA reforms hasn’t impacted on the way the Bill has been viewed,” Yousaf says. “What I have been trying to do is reach out to those people who may have a different opinion from the government in relation to gender reform and reassure them. I have told them: ‘Some people might view your opinion as offensive, others might view your opinion as mainstream and legitimate, but even if your opinion is viewed as offensive, this Bill doesn’t deal with the offensive. Indeed, the word offensive doesn’t appear in the Bill a single time.“
Yousaf’s view is backed by James Chalmers, professor of law at Glasgow University and co-author of a comparative review of hate crime legislation. “The kind of thing that has been prosecuted under the stirring up hatred on the ground of sexuality in England has been the handing out leaflets calling for gay men to be hanged, not people shouting at each other about the definition of adult human female on Twitter,” he says.
Chalmers and Andrew Tickell, law lecturer at Glasgow Caledonian University, who has appeared before the Justice Committee, agree many of the concerns are based on misunderstandings of the way the law would function.
“I think people are getting exercised over nothing,” says Chalmers. “‘My rights to be rude are being violated,’ which, of course, they are not. You can be as rude as you want.”
There are those, however, who believe the Scottish government has been guilty of poor communication and a naivety around the political blowback, especially given its experience with previous bills such as The Offensive Behaviour at Football Act, which was later repealed, and the Named Persons Bill - which was scrapped after some sections were ruled unlawful by the Supreme Court.
Why, for example, did Yousaf defend the “likely to” part of the Bill for so long, branding criticism “baloney” before backing down in September?
“The reason is that for most of my life [since the Public Order Act 1986] I have been covered by a racial stirring-up protection in law that has an intent limb, and also a “likely to” limb, and it hasn’t caused any controversy,” he says.
“I thought, if it works well, and it affords me adequate protection because of my race, then that same protection should be afforded to people targeted because of other protected characteristics.”
So what changed? “To this day, I think the concerns were incorrect,” he says. “But clearly people did have concerns. I think the lightbulb moment was hearing from individuals in the arts who said it would cause them to self-censor. That was key. Even if the Bill didn’t do what they thought it would, the mere perception might have caused them to [change their behaviour]. And this Bill is not about self-censorship, it’s about affording protections to people who are often the victims of hatred.”
Another bone of contention has been the decision to drop the Public Order Act’s “dwelling house” defence, which meant hate crimes were not prosecuted if they took place in the home. There’s a logic to this move, certainly. But wasn’t it also an obvious trigger for those groups who believe the SNP habitually interferes in the private sphere; the groups who branded the Named Persons Bill Orwellian?
“You’re right, we knew it was going to be controversial,” Yousaf says, “but as well as trying to employ as much political savvy as you can, I think it is important not to lose your principles and my principle is: I don’t think your front door should be a sanctuary from the law.”
The new hate crime legislation could not - as some have claimed - be used to target dinner table conversation, but it could be used in relation to organised events.
“With a dwelling house defence, I would be concerned that you could hold a gathering of 50 people in your mansion and even if it could be proven beyond reasonable doubt that you intended to stir up hatred through your threatening and abusive behaviour, it would not be a crime because you were in your own home,” Yousaf says.
The Justice Secretary will, however, tell the committee he is prepared to remove a clause which has been worrying those who work in the theatre.
The clause states that if a play creates a stirring up of hatred offence, the actors and directors could be charged. Once again, this law isn’t new. Tickell explains it, too, goes back to the Public Order Act 1986 which was brought in a few years after Mary Whitehouse took a private prosecution for gross indecency against the play, The Romans in Britain.
But being singled out in the Bill has caused concern among many of those who work in theatre.
David Greig, artistic director of Edinburgh’s Lyceum, told the committee that, in the past, theatres had been picketed by organisations looking to get plays shut down. It would be “incredibly easy” for these to be supported “with a claim the play sought to promote hatred against a group, which is another reason why putting theatre in in its own category makes it a target,” he said.
Yousaf flipped the question round. “ I asked: ‘‘Is there a good reason why somebody who had the intent of stirring up hatred as a director, though they did not speak the words, should *not* face criminal sanction?”
However, he revealed he had now been told there were existing “art and part” laws that could be used against theatre directors who connived to stir up hatred, prompting a rethink.
“The clause made very little practical difference; its inclusion was another example of an unforced error,” says Tickell. “Did it not occur to anyone that those in the theatre who don’t know anything about the original Public Order Act might look at this and say: ‘Why the hell are we in there?’”
Other flashpoints may have been caused by trying to chart a course through opposing viewpoints. Lord Bracadale, who conducted the initial hate crime review, suggested the list of protected characteristics should also include gender or sex. Yousaf bowed to a number of women’s organisations, who wanted a stand-alone offence for misogynistic harassment. A working group is to be set up to explore this possibility with the chair expected to be announced by Yousaf on Tuesday.
But the decision has allowed those concerned about the GRA to ask why trans-gender identity is protected when women are not.
“I think the Justice Secretary has been trying to please everyone and is realising now that - not through his fault - it’s starting to crumble down around him,” Chalmers says.
A similar conflict has arisen over the inclusion of the word “insulting” in relation to behaviour in the racial stirring up offence. Yet again, this has been copied over from the Public Order Bill. Those advocating freedom of speech say it undermines the right to offend, while racial equality groups are determined it should stay.
Lawyers say the word is redundant, and Bracadale recommended taking it out. “The offence requires that you are stirring up racial hatred, so there has to be more than the insult anyway - the insult on its own can’t be the offence,” Chalmers says.
“That may be true from a purist legal perspective,” Yousaf answers, “but if you talk to any of the racial equality organisations as I have, there’s a real concern; a perception - if nothing else - that this would represent a dilution.”
So many of the issues with the Hate Crime Bill appear to involve perception rather than reality. “I said in my submission that the Bill risked being mired in hyperbole and confusion and that has happened,” Tickell says. He believes that by beginning with the negatives, critics have failed to reflect on the point of the Bill. “We have managed to jump right past that and now we are getting all these bizarre headlines. The critics in the press don’t seem to worry people might notice how indifferent they appear to be about the fact some groups experience routine harassment.”
Even so, you do wonder why the Justice Secretary didn’t head those critics off at the pass.
Yosaf has a laid-back manner about him. He talks about his mistakes in a way that makes them sound like part of an organic learning process rather than something he was actively responsible for.
When I tell him someone suggested to me that - like previous SNP legislation - the Bill was put together too quickly, he talks about the Bracadale review and roadshows and consultations. When I ask him if he is worried the Bill is feeding into the narrative of the SNP as controlling, he says: “It’s not showing itself in the polls to be problematic,” before adding. “That’s not to be complacent.”
There’s a lot of corporate-speak, too: about reaching out and listening and going on a journey, and you find yourself nodding along until you suddenly remember he’s the Justice Secretary not the head of HR, and think perhaps he ought to be a little less go-with-the-flow.
I ask him again if he should have foreseen how difficult it would be and he says he always knew. “I remember the day I was appointed,” he says. “I think I was among the last cabinet secretaries to see the First Minister. She had gone through some difficult conversations; it had been a tough day.
“So I went in. She told me I was Justice Secretary. We only talked about four or five issues and hate crime was one of them. We talked about how challenging it was going to be and how it was going to take political savvy and skill to bring as many people as possible along with us. “
Has he lived up to that? “I am not sure,” he says, “but I hope by Stage 3, if we don’t have unanimity, we will have a high degree of consensus. The aim will be to get Parliament and society to see the Bill as it really is.”