Scotland’s hateful hate-crime law Ordinary citizens are viewed with disdain

But not everyone feels the same. First Minister Humza Yousaf is an enthusiast for the new piece of muppetry, including its application in the home, and thinks that perception-based recording of non-crime hate incidents gives the police “an idea of where there might be spikes in hatred”. Perhaps he pictures the police station from Taggart, with glum-faced officers putting red pins into a wall map featuring J.K. Rowling’s house.

Growing up in Scotland as the offspring of sassenachs, I have certainly been made aware of the presence of spikes of hatred at various times in my life; but strangely enough, animus against the English does not figure heavily in defences of the policies. Instead, the focus is upon more fashionable victims. You may not understand what a non-binary person actually is, let alone be able to summon up enough negative emotion to persecute one, but according to the Scottish government such people are sufficiently threatened as to justify their specific inclusion in the Bill. Also included under the characteristic of transgender identity are people who “cross-dress”: good news for the many Scotswomen who wear trousers, as otherwise females don’t get much of a look-in, with sex not mentioned as a protected characteristic at all.

Meanwhile, another social tinderbox allegedly waiting to explode, according to policymakers, is widespread resentment against that 0.018% of the population “with variations in sex characteristics” — colloquially known as intersex people, and who will also be specially protected under the new law. If you didn’t know any better, you might conclude that several aspects of the legislation are a frivolous distraction from the country’s real problems.

Worse, you might infer that all of this is implicitly a cudgel with which to bash people who are poor and/or haven’t been to the University of St Andrews, as is heavily suggested by another aspect of the “Don’t Feed Hate” ad campaign: namely, its focus upon “young men aged 18-30” as being “most likely to commit hate crime”. In particular, we are told to watch out for “those from socially excluded communities who are heavily influenced by their peers”, and “who have deep-rooted feelings of being socially and economically disadvantaged, combined with ideas about white-male entitlement”. In other words, if you are a young white male, being influenced by your peers is bad (as opposed to being influenced by a big ginger muppet, one assumes); and your poverty and social exclusion are now reduced to mere “feelings”. Still, it seems that some feelings are taken more seriously by the Scottish ruling classes than others.

Many commentators are concerned that the whole Act will chill legitimate free speech, either via actual criminal sanctions or via misinterpretations of the law by police and others; and there are particular worries about speech that is critical of religion, either of the traditional or transactivist kinds. But the smooth-tongued rainbow mandarins paid to dictate equality policy to a mostly vacant-eyed political class have told everyone to take a deep breath and relax. As the chief executive of Equality Network in Scotland Rebecca Crowther soothingly told Sky News: “This legislation is not going to catch people online saying things that I might disagree with, that you might disagree with, things that might upset me, things that might upset others in the community… What it does legislate against is when that freedom of speech strays into something that is abusive, that could cause fear and alarm, and that also incites hatred or incites people to act on that hatred.”  Meanwhile Yousaf himself has said that he has “full confidence” that the police will look beyond “vexatious” complaints.

But what this trite sort of response obviously ignores is that, as social norms change, it is increasingly difficult for people to distinguish between that which is merely disagreeable and upsetting, and that which is genuinely hateful and abusive. It is an irony of the present situation that so many seem to think that biology is socially constructed but that the meaning of hatred is natural and fixed. In fact, what counts as an adequate expression of a particular emotion is at least partly culturally determined, and these days the category of hatred seems to be a lot more expansive than it used to be. Previously, its presence was indicated by otherwise random-looking outbursts of violence towards outgroups, and the use of aggressive slurs. In present day Scotland, however, it seems detectable from saying things like “choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat” — a recent statement by the Conservative MSP Murdo Fraser, subsequently recorded by police as a non-crime hate incident, a verdict he now intends to contest in court.

The wording of the Act tries to solve this problem by referring to what a “reasonable person” would think: so that, for instance, it is a necessary condition of committing a stirring-up offence that either one “behaves in a manner that a reasonable person would consider to be threatening or abusive”, or “communicates to another person material that a reasonable person would consider to be threatening or abusive” — and, in doing so, intends to stir up hatred against a protected group.

In this formulation, there is a pleasing echo of the Scottish Enlightenment and its emphasis on the tempering of emotion with more impartial rationality. For instance, despite thinking of moral judgement as mainly a matter of feelings not reason, David Hume still placed emphasis on the importance of “steady and general points of view”; meaning that we should not just blindly sympathise with what others are feeling but also apply rational discernment to get rid of prejudice and partisanship. Meanwhile, Adam Smith, another famous sentimentalist about morality, placed great emphasis not just on imaginatively simulating the feelings of others, but also upon taking the more distanced perspective of an “impartial spectator” in order to hone judgements of approval or disapproval about those feelings.

Equally, though, both Hume and Smith were clear that you can only exercise reasoned judgement about the aptness or otherwise of another person’s emotional state if you are also adequately informed about what he or she is getting aerated about in the first place. And yet, this is precisely the level of information lacking these days from the average person’s perception of things like “abusiveness” or “hatred”. Instead, large numbers of citizens have been socially conditioned to take the barest presence of formerly standard features of ordinary discourse — expressed scepticism about certain popular values; unfamiliarity with middle-class speech codes; demurrals from progressive articles of faith, and so on — as automatically implying a hateful attitude, and to proceed to the nearest third-party reporting centre on that basis.

A reasonable person wouldn’t have gone along with any of this, and yet in Scotland crazily myopic and illiberal measures continue to be waved through, with stunning condescension on the part of their smug originators. In other words, there’s no use appealing to what some hypothetical reasonable person would think, when there appear to be no such people in the vicinity. They’ve probably all gone down the sex shop to report J.K. Rowling for saying homosexuality is a thing. It’s almost as if these people hate us.

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Kathleen Stock is an UnHerd columnist and a co-director of The Lesbian Project.

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