This is the text of a speech I gave on March 23rd 2024 at the Freedom Festival, an annual event organised by the Margaret Thatcher Centre at the University of Buckingham.
I wanted to begin by drawing your attention to the Hate Crime and Public Order (Scotland) Act, which has been in the news recently.
This Bill received Royal Assent in 2021, but only comes into force on April 1st of this year.
The Bill updates the list of characteristics protected under hate crime legislation – disability, race, religion, sexual orientation, transgender identity and variations in sex characteristics – and proposes the addition of ‘age’ to that list. That is to say, if a person commits a criminal offence in Scotland, and demonstrated malice, or was motivated by malice and ill-will, towards the victim based on one of these characteristic (or characteristics) – disability, race, religion, sexual orientation, transgender identity and variations in sex characteristics and now age – the court must take that ‘aggravator’ into account during sentencing.
More significantly, the Bill also extends the scope of the ‘stirring up hatred’ offences whereby it is not only a criminal offence to stir up hatred against a person or group of persons because of their race – which was already the case in Scotland – but also because of their possession of one or more of the protected characteristics on the extended list.
Finally, the Bill also scraps the ‘dwelling defence’ whereby you couldn’t be prosecuted for stirring up hatred if the alleged offence took place in a private dwelling, e.g. your own home. From April 1st, if you say something hateful about a person or group of persons with one or more of the protected characteristics to your son or daughter or spouse in your kitchen, you can be prosecuted, which raises the spectre of children being summoned to court to testify against their own parents. Although, they may be happy to do that since, in all likelihood, they will be the ones who submitted a police complaint about their father or mother‘s ‘hate speech’ in the first place.
Should you wish to report a ‘hate crime’, you won’t have to go to a police station or call the police. Police Scotland have created 411 ‘third party reporting centres’ where ‘hate crimes’ can be reported — anonymously if you prefer – a ‘safe space’ in which to snitch on your neighbours.
Most are in community buildings such as council offices, libraries and housing associations, but one, notoriously, is in an LGBT sex shop in Glasgow called Luke & Jack.
The good people of Glasgow can now buy a black leather ball gag and report a hate crime at the same time.
Will ‘misgendering’ trans people on X be an offence under the new law? Yes, according to Rajan Barot, a former prosecutor, who advised J.K. Rowling to “start deleting” her recent tweets about a trans activist since they would “most likely contravene the new law”. Needless to say, she remains defiant.
Police Scotland has issued training guidance, leaked to the Herald, about how “threatening and or abusive material” might be communicated under Section 4 of the Act and it includes through social media posts, creating signs and playing videos, and “through public performance of a play”, which will almost certainly encompass stand-up comedy, raising questions about whether the Edinburgh Fringe, the largest comedy festival in the world, can go ahead this summer.
But perhaps stand-up comics won’t get their collars felt because, for the most part, they’re nice, university-educated members of the middle class.
According to Police Scotland’s website, the people most likely to commit hate crimes are young men with “deep-rooted feelings of being socially and economically disadvantaged, combined with ideas about white-male entitlement” – which is a mealy-mouthed way of saying white working class men.
This cod sociology appears on the page introducing the ‘hate monster’ — a cartoon creature that looks like a hairy pepperoni and has been described as a pound shop Elmo. (This page has now been deleted.)
According to Police Scotland, the angry-looking figure represents “the feeling some people get when they are frustrated and angry” and turn on other people.
“The Hate Monster loves it when you get angry,” the blurb continues.
He weighs you down till you end up targeting someone, just because they look or act different to you.
When you’re feeling insecure or angry, the Hate Monster feeds on that.
If you have committed or feel you’re at risk of committing a hate crime, remember, it doesn’t make you feel better.
Maybe for a moment, but in the end, you feel worse.
The hate lingers. It can really mess up your life in other ways too, like when it comes to things like finding a job.
A police record for hate crime is not a good look on anyone. Go on, be good to yourself. Don’t feed the Hate Monster.
This example of what the Scottish writer Ewan Morrison refers to as ‘cute authoritarianism’ has been widely ridiculed. But as ex-Scottish Police Federation chief Calum Steele pointed out, a great deal of work went into creating the Hate Monster: “There would have been many meetings, committees and focus groups where this concept was nurtured and finessed before being agreed for release into the world. I can visualise them now.”
Can’t we all.
Police Scotland have said they will investigate every ‘hate crime’ report and, following their own Hate Crime National Guidance, if they conclude no offence has been committed they will record the episode as a ‘hate incident (non-crime)’. Although the guidance contains detailed instructions for how such incidents are to be logged, at no stage does it introduce any requirement for any evidence to establish the hate element beyond the perception of an individual, who could be the complainant or some other person, including the police officer handling the complaint.
All these investigations of hate crime reports and the recording of ‘non-crimes’ will consume considerable police resources, yet the SNP government is only proposing to increase the resource budget for Police Scotland in 2024-25 by 5.6%, most of which will be swallowed up by pay rises to keep pace with inflation.
So how will Police Scotland manage this additional workload?
To answer that question, I turn to the cover story in this week’s Spectator by Lucy Hunter Blackburn, a former Scottish civil servant: “Earlier this month, Police Scotland announced a new ‘proportional response’ strategy that in effect said they will not investigate what they regard as minor crimes: smashed home windows, for example, or thefts not captured on a security camera and which are therefore hard to solve. It is estimated that this change in approach will lead to 24,000 fewer investigations a year, saving 130,000 police man-hours.”
In other words, the police will investigate fewer crimes so they can investigate reports that will, in the majority of cases, turn out to be non-crimes.
One of the unintended consequences of this meticulous record keeping is that, as 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.”
I wonder if the SNP has considered the impact of that on tourism, which accounts for 5% of Scotland’s GDP and 7% of employment?
It’s easy to dismiss Scotland’s new hate crime law as a self-own by the Scottish government, another SNP calamity that will end up alongside the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 and the named person scheme in the legislative dustbin.
We confidently tell ourselves it could never happen here.
Even Rishi Sunak has condemned the new legislation.
“For the Government’s part, we would never and are not introducing any similar kind of legislation here in England. And we’d be very aware of the potential for chilling effects on free speech,” said a spokesman for Number 10 last week.
But I would caution against complacency. Pointedly, Sir Keir Starmer hasn’t condemned it. On the contrary, Annaliese Dodds, the Shadow Secretary of State for Women and Equalities, told the Labour Party conference last year that a Labour government would “tackle the rising tide of hate, with stronger laws so those who carry out anti-LGBT+ hate crime get the tougher sentences they deserve”.
She went on: “We will deliver where the Conservatives have failed by bringing in a full, no-loopholes, trans-inclusive ban on conversion therapy.”
Such a ban is likely to capture parents urging their children not to embark on irreversible medical pathways that can leave them unable to have children or achieve orgasm, as well as health professionals who favour the ‘watchful waiting’ approach to treating gender-confused adolescents rather than the ‘affirmative care’ approach.
But what about the prospect of a Hate Crime and Public Order (England and Wales) Bill?
Should Sir Keir be tempted by that, there is an oven ready version that has been drawn up by the Law Commission of England and Wales. Following a consultation in 2020, the Commission recommended that an almost identical bill to the Hate Crime and Public Order (Scotland) Act be passed in England and Wales, only it would be slightly worse because the Commission would like it to include a new Harmful Communications Offence that would criminalise communications “likely to cause harm to a likely audience”, where harm is defined as “psychological harm amounting to at least serious distress”.
That offence would be punishable by up to two years in jail.
And, of course, if the police in England and Wales investigate a report of a hate crime and conclude no crime has been committed, they record it as a ‘non-crime hate incident’.
The Free Speech Union estimates that roughly a quarter of a million of these have been recorded since the publication of the Hate Crime Operational Guidance by the College of Policing in 2014, which is an average of more than 65 a day. Which may explain why in the past three years police forces have failed to solve a single burglary in half of all neighbourhoods in England and Wales.
But even if a Labour Government doesn’t enlarge the scope of the ‘stirring up’ offences or scrap the ‘dwelling defence’ — both recommended by the Law Commission – that’s not a reason to think what’s happening in Scotland couldn’t happen here because, to a great extent, the Hate Crime and Public Order (Scotland) Act just brought Scottish hate crime law into line with the law south of the border.
For instance, it made it an offence to stir up hatred against people based on their religion or their sexual orientation, which is already against the law in England and Wales.
The Public Order Act 1986 was amended by the Westminster government to enlarge the scope of the stirring up offences to include religion in 2006 and sexual orientation in 2008. Those changes to the law didn’t apply in Scotland because public order is a devolved area of legislation.
The ever growing list of protected characteristics – nine are included in the Equality Act 2010 – means it’s inevitable that the characteristics that are within scope of the ‘stirring up’ offences will continue to multiply, both here and in Scotland – and, incidentally, in Northern Ireland, where the Justice Department has developed plans for a Hate Crime and Public Order (Northern Ireland) Bill which, now that Stormont is back up and running, will be brought forward later this year.
That this creep would be the inevitable consequence of criminalising hatred was predicted in 1965 during the House of Commons debate about Labour’s Race Relations Bill, which is where the rot began.
By the way, if there are any undercover Guardian journalists in the audience, there’s your headline: “The rot began with the Race Relations Act, says speaker at far Right conference.”
Why do I say this? Because Clause 6 of that Act substituted the offence of “stirring up disorder” – the Common Law principle that you can more or less say what you like unless it leads to a breach of the peace – with the offence of intentionally stirring up racial hatred.
To quote from a recent piece in the Daily Sceptic by my colleague Ian Rons: “Clause 6 created the criminal offence of inculcating in the mind of another person a feeling of hatred towards a particular racial or ethnic group, decoupled from any actual likelihood of violence or the threat of violence. This was a momentous change leading us down the slippery slope toward our current free speech crisis.”
An example of how this new principle is applied, which found its way into the Public Order Act some 20 years later, was the recent prosecution of Sam Melia, who was sentenced to two years in jail after being found guilty of intending to stir up racial hatred because he encouraged people to put up stickers saying, among other things, “It’s alright to be white” and “Reject white guilt”. No evidence was produced at the trial to show that these stickers – and some of them were clearly antisemitic – actually did stir up racial hatred. To secure a conviction, it was sufficient to show that that was Sam Melia’s intent.
I recently met with Lord Frost to discuss whether it would be possible to draft a British version of the First Amendment with a view to persuading the Conservative Party to take it up, probably at some distant point in the future.
But in fact we don’t need a British First Amendment because the First Amendment is in reality an American version of the breach of the peace principle in English Common Law. This principle was summarised in R v Howell in 1982: a breach of the peace occurs “whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affect, a riot, unlawful assembly or other disturbance”.
This is the same principle set out in Brandenburg versus Ohio, a landmark First Amendment case in 1969, in which the U.S. Supreme Court held: “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy [even] of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.”
“Imminent lawless action” – that’s American for breach of the peace.
As my colleague Ian Rons points out, this is the same principle articulated by J.S. Mill in On Liberty: “An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.”
So I’m happy to tell David Frost that we don’t need a British First Amendment, all we need do is repeal all the ‘hate speech’ offences, including the ‘stirring up’ offences, which will mean the Common Law principle will then apply by default, whereby you can more or less say what you like in the public square – and, indeed, in the privacy of your own home – unless it leads to or is likely to lead to a breach of the peace.
What is the prospect of such a proposal finding its way into the Conservative manifesto? When considering this, it’s worth noting that the 1986 Public Order Act was passed by a Conservative Government led by Margaret Thatcher and in spite of having had 14 years to do so, successive Conservative and Conservative-led administrations have not amended the Equality Act 2010.
I won’t hold my breath.
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