Subscribe to Holyrood updates

Newsletter sign-up


Follow us

Scotland’s fortnightly political & current affairs magazine


Subscribe to Holyrood
Fear and Loathing: Why the new Hate Crime Act could help feed the monster

There are concerns over the impact the legislation could have on freedom of speech | Adobe Stock

Fear and Loathing: Why the new Hate Crime Act could help feed the monster

When new Reform UK MP Lee Anderson hired an open-top bus to tour round his constituency after defecting from the Tories, he no doubt expected a rapturous response in a town he likes to call the “capital of commonsense”. But life comes at you fast in the British politics of 2024. While a small number of citizens of Ashfield did come out to wish him well, one black woman had an entirely different verdict for Anderson, a one-time Labour councillor, calling him a “fucking wanker” as press photographers and TV cameras circled. It wasn’t the response Anderson, who has put immigration front and centre of his pitch, had anticipated, even if some will no doubt believe it’s the one he deserved.

Anderson’s defection should have marked the end of a sorry chapter for Britain’s ruling party. The new Reform MP for Ashfield had slurred London mayor Sadiq Khan, accusing him of being under the sway of “Islamists”, a dog whistle to the far right from the man who “just wants his country back”. A former Conservative Party deputy chairman, Anderson was suspended for refusing to apologise after telling GB News that Islamists had “control” of London, Khan and Labour leader Keir Starmer. While a parade of Tory MPs took to the airwaves willing to call out the comments for being “wrong” none were willing to call them racist or Islamophobic. 

Yet if Prime Minister Rishi Sunak thought Anderson’s departure would draw a line under his party’s problem with hate speak, he was soon to be disappointed. On the same day as the former Tory MP was welcomed by Reform, it emerged the Conservatives’ largest donor, Frank Hester, had told colleagues that Diane Abbott makes him “want to hate all black women”, adding that the Labour MP for Hackney North and Stoke Newington “should be shot”. If suggesting that the first black women elected to parliament be murdered was not an example of the “poison” of extremism infecting our politics that Sunak had warned about just a few days earlier, then it’s hard to know what is. For her part, Abbott is currently suspended from the Labour Party over alleged antisemitic remarks made in a newspaper column. 

A lame-duck prime minister, Sunak now has one meaningful act left to carry out before he demits office – to name the date of a general election. Until he does, the body politic will continue to be infected with the poison he warned against in that Downing Street speech. In these end days of Tory rule, we have seen a vacuum created in which populism has flourished and where mainstream politicians like Anderson and former Home Secretary Suella Braverman can give succour to the far right. It’s an era where a former Labour MP who has previously refused to recognise the state of Israel can be elected to a constituency in the north of England in a by-election billed as a referendum on Gaza. And it’s an era where a recent prime minister can rub shoulders with MAGA Republicans, accusing President Joe Biden of being “asleep at the wheel” while fuelling conspiracy theories about the “deep state”. 

New Reform MP Lee Anderson tours his constituency | Alamy

This is the politics of 2024 in Britain, where substantive matters of policy have been supplanted by culture war wedge issues, where increasingly race and racism plays a role and where one emotion trumps all others – hate.

Into this maelstrom comes the Scottish Government’s controversial hate crime legislation. Passed by MSPs in 2021, it will take effect on 1 April despite there remaining significant reservations about how it will be policed. The legislation followed a review carried out by Lord Bracadale in 2018 which called for the consolidation of existing hate crime legislation and the introduction of new statutory aggravators for age and an updated definition of ‘transgender identity’. The judge also called for the introduction of offences relating to the stirring up of hatred. 

In England and Wales, the number of hate crimes recorded by the police rose every year since 2012-13 until a slight drop off last year, although according to the Home Office, increases had been driven by improved recording and a better understanding of what constitutes an offence. According to figures published last year by Police Scotland, there were 6,927 hate crimes recorded in 2021-22, with 62 per cent including a race aggravator and just over a quarter (27 per cent) a sexual orientation aggravator. While there has been a downward trend in the number of racially aggravated charges brought in the past decade, the number involving prejudice motivated by sexual orientation has increased every year since 2014-15. 

But if the motivation for Scotland’s hate crime legislation was sincere, its implementation could yet be fraught with difficulties. It is the new stirring-up offences that have excited the most debate. Alongside an existing offence for stirring up racial hatred, the new legislation will criminalise those found to have stirred up hatred based on disability; religion; sexual orientation; transgender identity; age; and variations in sex characteristics. While amendments were made to early drafts of the bill amid concerns over a chilling effect on freedom of speech, concerns remain. 

In many ways Scotland has yet to recover from the toxicity that accompanied the debate surrounding the Gender Recognition Reform Act, which was passed by MSPs in late 2022 before later being blocked by the UK Government due to its implications for the reserved Equality Act. The debate around the Hate Crime and Public Order Bill had already rehearsed many similar concerns, namely the lack of protection given to women. Under the new hate crime law there are specific provisions for hatred towards trans women and men who cross-dress as women but not women themselves. The Scottish Government intends to make misogyny a criminal offence under separate legislation recommended in a report by Baroness Helena Kennedy KC on tackling violence against women and girls.  

Police Scotland's Hate Monster campaign was roundly mocked | Police Scotland

Nevertheless, those including SNP MP Joanna Cherry have warned the new legislation could be “weaponised” by trans rights activists in an attempt to criminalise women who do not share their views on gender identity. The policy group Murray Blackburn Mackenzie (MBM) has said the legislation “reinforces a hierarchy between those characteristics that are protected and those that are not” and has expressed concern about the omission of sex as a protected characteristic. 

Among the legitimate concerns, however, there is also a good deal of misinformation. When the author JK Rowling was told to delete posts on X (formerly Twitter) about trans activist India Willoughby lest she fall foul of the new law, the author tweeted: “If you genuinely imagine I’d delete posts calling a man a man, so as not to be prosecuted under this ludicrous law, stand by for the mother of all April Fools’ jokes.” Discussing Rowling’s comments on Talk TV with Alba MP Neale Hanvey, presenter Julia Hartley-Brewer said refusing to use someone’s preferred pronouns was something she was “quite happy to go to prison for”. 

But calling a trans woman a man will not be an offence under the legislation. Roddy Dunlop KC, dean of the Faculty of Advocates, who has voiced criticism of the legislation, tweeted: “Misgendering is not being criminalised by [the act]. Concerns about the act are justifiable, but let’s not misstate its reach. I have concerns as to how the act may result in multiple complaints that don’t pass muster (yet need to be looked at). But that does not mean that people are going to be locked up for ‘offending’ people. They shouldn’t, and they won’t.”

In the first instance it will be for police officers to interpret the legislation to decide whether a crime has been committed. This would be problematic at the best of times, and these are far from the best of times for Police Scotland. With officer numbers currently at their lowest level since 2008, the national force recently implemented a new policy whereby low-level crime will not be investigated in the absence of evidence such as eye-witnesses or CCTV. Yet under the new legislation officers could find themselves responding to complex – and possibly vexatious – complaints about alleged hate speak.

Back in 2020, the Scottish Police Federation, which represents the rank and file, said the proposed legislation was likely to significantly increase workload and lead to officers “policing speech”, something it said could “devastate the legitimacy” of the force in the eyes of the public. Four years on and despite the parliamentary checks and balances, the SPF describes the act as a “recipe for disaster”. 

With renewed focus on the legislation ahead of it coming into effect, The Herald this week reported that training given to officers had highlighted that “threatening and abusive” material could be communicated through “public performance of a play”, once again raising concerns about the impact the act could have on both freedom of speech and the arts more generally. Police Scotland responded by saying that training given to officers had included “a range of scenarios where offences might take place” but denied the force would “target these situations or locations”. 

The force didn’t get off to a great start when its “hate monster” campaign, which was launched last year but has come under renewed focus recently, was roundly mocked. Featuring a bright orange cartoon villain, an accompanying YouTube video is narrated by a voice which says: “He’ll make ye want to vent yer anger…Don’t feed the Hate Monster.” The force was in no doubt who the campaign was aimed at – young men aged 18 to 30 who “may have deep-rooted feelings of being socially and economically disadvantaged, combined with ideas about white-male entitlement”. Former Scottish Labour leader Johann Lamont called it “puerile” and said the suggestion that hate was driven by economic disadvantage “insults all who support their families and communities despite poverty”.

First Minister Humza Yousaf has complained about 'disinformation' surrounding the new laws | Alamy

Indeed, the latest attempt to legislate away hate bears some similarities with the much-maligned Offensive Behaviour Act which, in its attempts to tackle sectarianism in Scottish football, overwhelmingly targeted young men from working class backgrounds. Later repealed, it was described by the Labour MSP who led the fight against it as the “worst piece of legislation in the Scottish Parliament’s history”. That was before the Scottish Government’s gender reforms, however, which took up considerable amounts of parliamentary time only to be vetoed by the UK Government. 

It was once said that the arc of the moral universe, though long, bends towards justice. Yet there is no guarantee that a society becomes naturally more open and tolerant simply by default. While hate crime was down overall last year, offences against trans people in England and Wales rose by 11 per cent. And after Hamas launched a series of terror attacks on 7 October, the Metropolitan Police reported a “massive increase” in antisemitic incidents. There is also a certain irony that at a time of legislating against hate speak, our politics is filled with it. Social media, too, has helped create a safe space for assorted bigots who believe they can say what they want with impunity. Given the nature of the environment in which we find ourselves, it’s to be expected that when the new legislation comes into force on 1 April there will be complaints that are both vexatious and specious. The test for the law will be not whether it responds, but how it does so. 

Holyrood Newsletters

Holyrood provides comprehensive coverage of Scottish politics, offering award-winning reporting and analysis: Subscribe

Read the most recent article written by Chris Marshall - Assisted Dying: Why the experience of elsewhere shows the importance of caution.

Get award-winning journalism delivered straight to your inbox

Get award-winning journalism delivered straight to your inbox


Popular reads
Back to top