August 14, 2020

Imagine you’re in the audience of a controversial play at the Edinburgh festival. The author has decided — bravely or recklessly, depending on your point of view — to tackle the conflict between some feminists and trans people. The characters include a campaigner for women-only spaces and a trans woman, neither of whom is presented in an entirely favourable light. You might expect the production to attract mixed reviews and even some protests, which is hardly unheard of at the Edinburgh fringe. But if the Scottish government’s ill-conceived hate crime bill passes into law, the outcome might be much more sinister: one of your fellow audience members could take offence, go to the police, and report the production for “stirring up hatred” against trans people.

Everyone involved in the play — playwright, actors, the producer, the director, even people who handed out flyers on the streets of Edinburgh — could find themselves under investigation. In time, they might be charged with a new criminal offence, whose penalties include up to seven years in prison.

Sounds like scare-mongering? It’s not. A whole section of the bill, snappily titled “culpability where offence is committed during public performance of play” [sic], has been drawn up with theatrical performances in mind. Its definitions are so widely drawn as to catch stand-up, one-person shows, even opera. One of the bill’s critics, the Faculty of Advocates, has pointed out that there does not have to be “any intention on the part of the performer, director or presenter to stir up hatred”.

Have MSPs ever been to the theatre? Read a book? Don’t they know that authors often create unattractive characters without endorsing them or condemning an entire group? There would be no way of knowing in advance what might lead someone to use the new law to close down a production that offends their views on religion, say, or one that focuses on gay men using surrogacy to have a child. The chilling effect on the performing arts is not hard to imagine, but the legislation would also have the bizarre effect of criminalising performances in Scotland that would be perfectly legal in England.

What kind of government blithely steams ahead with legislation that would muzzle one of the world’s most successful arts festivals? Let me introduce you to the SNP’s Justice Secretary, Humza Yousaf. The 35-year-old MSP for Glasgow Pollok has managed to create an impressive coalition of opponents to his Hate Crime and Public Order (Scotland) bill, even though it’s being presented as a tidying-up exercise that merely brings together existing hate crimes laws into a single piece of legislation. Its critics, who include everyone from the crime writer Val McDermid and the comedian Rowan Atkinson to the Humanist Society Scotland, the Scottish Police Federation and the Catholic church, take a very different view. Earlier this week, McDermid was among 20 writers and performers who signed an open letter warning that the bill could stifle freedom of speech.

Yousaf’s response is best summed up by a tweet he posted last month, which managed to be patronising and dismissive while also getting a core part of his own legislation wrong. “The Bill will not prevent you expressing controversial or offensive views”, he lectured his critics. “Just don’t do it in a threatening or abusive way that is likely or intended to stir up hatred”.

As I’ve already pointed out, you don’t have to intend to stir up hatred to be caught by the legislation, something that the Justice Secretary should surely know. Rank-and-file police officers in Scotland are horrified: “We are firmly of the view this proposed legislation would see officers policing speech and would devastate the legitimacy of the police in the eyes of the public,” says Calum Steele, the SPF’s general secretary. New powers to forcibly enter and search premises in pursuit of an offence of “possessing inflammatory material”, whatever that may be, are hardly likely to improve relations between the police and the public.

The Scottish government has fallen into a familiar trap, in assuming that we all agree on the definition of subjective words like ‘hate’, ‘insult’ and ‘offence’. We don’t — and there isn’t even agreement on which groups need enhanced legal protection. To return to my theoretical example for a moment, if I were offended by the negative portrayal of the feminist in the play, I would just have to lump it. I’m not complaining about that — I’ve campaigned for the right of authors and performers to offend for years — but it’s striking that women have been left off the list of people who will receive additional protection under the bill. (Age is being added to the protected characteristics, joining disability, race, religion, sexual orientation and transgender identity.)

This is par for the course: misogyny isn’t a hate crime anywhere in the UK and senior police officers baulk at the very notion, on the grounds (I paraphrase) that there’s so bloody much of it. The omission speaks volumes about the motives behind hate crime legislation, which are well-meaning — but only up to a point. Governments are selective about who they see as vulnerable, even though women are far more likely than men to be on the receiving end of sexual harassment, murder and rape threats.

The Scottish government says it is considering adding women as a protected group at a later date but the bill won’t protect Edinburgh’s most famous resident, the author J. K. Rowling. She has been the target of a vicious campaign of abuse in recent months, facing nonsensical accusations of ‘literally’ killing trans women for defending women’s rights. If the legislation is passed in its present form, however, Rowling might well find herself reported to the police for stirring up hatred against trans people, an offence that will be very much in the eye of the beholder. Indeed the legislation seems to have been drafted by people who haven’t given any thought to the possibility of vexatious or misguided complaints.

Countless people have been driven off social media sites, not for “stirring up hate” but for posting material that zealots of one sort or another disagree with. The acronym DARVO — deny, attack, reverse victim and offender — refers to a common tactic used against feminists, describing the way hateful people turn the tables and present themselves as victims. That’s bound to happen if the bill isn’t amended, and women will be among the biggest losers. Genuine hate speech — threats to kill, rape or hurt someone’s family — is already a criminal offence and should be prosecuted under existing legislation, without putting authors, comedians, playwrights and campaigners at the mercy of malicious reporting.

To be fair, there is one aspect of the hate crimes bill that has been almost universally welcomed, and that is the abolition of blasphemy. It is an outdated law, incompatible with the values of a modern, secular society, and it has not been prosecuted in Scotland for almost two centuries. Yet the very same legislation threatens to criminalise the free expression of ideas that challenge prevailing orthodoxies, whether they are religious or (more likely) rooted in social movements. It would be ironic if Nicola Sturgeon’s government was to go down in history as the administration that got rid of blasphemy, only to introduce a secular form of heresy into Scottish law.