Yesterday’s post covered Piers Morgan’s polemics, which cost him his job last week.

In the latter half of last week, Scotland passed what appears to be a draconian Hate Crime Bill, the subject of today’s post on censorship in Britain.

Thanks to BBC Parliament, I saw some of the debate in the Scottish Parliament in Holyrood a few weeks ago. I was grateful to the Scottish Conservatives who raised many questions about the scope and the reach of the then-proposed legislation.

On March 10, 2021, the day before MSPs passed the legislation, Lucy Hunter Blackburn wrote an excellent article for Holyrood: ‘Chilling effect: how the Hate Crime Bill threatens free speech’.

Excerpts follow, emphases mine.

The article begins with the wide ranging opposition the bill had received:

The bill has had an exceptionally difficult passage to date, prompting criticism from a range of organisations, including at various times the Faculty of Advocates, the Law Society, the BBC, the National Secular Society, the Catholic Church and a raft of writers and artists.

Much of the objection revolves around the precise definition of ‘stirring up hatred’ in Part 2 of the bill, particularly with the trans movement being active in Scotland. In fact, the article has a photo of trans rights activists to illustrate the point:

In particular, significant concerns remain in relation to issues around sex and gender identity, and the risk of furthering chilling effects in an area of debate that people are already afraid to enter.

The Scottish Government and some commentators have downplayed such worries, insisting that people will not be criminalised for making basic statements about the nature of sex and gender identity, in ordinary language.

A leading lawyer tweeted: “in my opinion of the bill (if enacted) it will not be criminal to criticise the government. Nor will it be criminal to say there are only two genders. Neither involves stirring up hate, or is threatening or abusive.”

But the risks here are more subtle. And not for the first time, subtle risks are not being dealt with well in the process of making law, and seem to be least apparent to those least expecting to be affected.

The article looks at the language used in Part 2 of the legislation:

The bill as amended at Stage 2 requires that behaviour must be judged “abusive or threatening” by a “reasonable” person, and “intended to stir up hatred”. None of these terms are further defined.

MSPs have taken the view that the meaning of all these words will be obvious, and they will “set a high bar”.

Yet this overlooks the mass of evidence presented over the course of the passage of the bill that demonstrates what is hateful, abusive, and reasonable is substantially contested in the context of discussing sex and gender identity.

Even before this legislation was passed, women in Scotland were in danger of losing their jobs for expressing their opinions on the subject of sexual identity:

… women have already lost their jobs, and had their details recorded on police databases for asserting that sex matters.

This is probably how the legislation would work in practice:

In practice, a person will only have to find a police officer willing to entertain the idea that particular statements are intended to “abusive”, to trigger an investigation into whether a group or individual intended to stir up hatred.

What might an investigation entail? Organisations representing journalists giving evidence to the committee spoke about the serious professional and personal disruption of having laptops and phones seized, for unknown periods.

It would be likely to mean police interviews. It would be a non-trivial experience, even if charges were not pursued. This [is] broadly what happened to veteran feminist politician Lidia Falcon in Spain, before the authorities decided she had no hateful intent.

Before contemplating the possibility of going to court, let alone the likelihood of receiving a conviction, the sole barrier to a large disruptive criminal justice system intervention in a person’s life is, therefore, the application by the police of the “reasonable person” test of being “abusive”.

Guessing how that might be applied if or when someone complains will now hang over people. How it is actually applied will be the difference between ordinary life and sudden, substantial disruption to that.

Earlier this year, MSPs attempted to bring in amendments to the Bill that would have protected freedom of speech, but the backlash outside of Holyrood was too great:

Following a social media backlash and accusations of transphobia, opposition MSPs and the Cabinet Secretary for Justice hastily withdrew all these amendments, and agreed to take a ‘collaborative’ approach to discussing a generic wording for a Stage 3 amendment on freedom of expression instead.

The justice secretary apologised for any hurt caused by singling out particular characteristics. The convener of the justice committee, Adam Tomkins, stated that he was “‘alarmed and distressed and perhaps even, if I’m honest, a little afraid” by how this had played out.

In committee, the justice secretary refused to state that there are only two sexes.

More recently, Labour MSP Johann Lamont unsuccessfully attempted to bring in another amendment with a list of words that would not be considered threatening:

This includes asserting that sex is a physical, binary characteristic that cannot be changed, that terms such as ‘man’ and ‘woman’ refer to the characteristic of sex, and that a person’s sex may be relevant to their experience.

On 5 March, the Equality Network and Scottish Trans Alliance circulated a briefing to all MSPs, advising voting against this amendment, describing such statements as sending a message that that “trans people’s rights are open season for attack”.

The article concludes:

If the bill is passed in the form the government is seeking, while it will not make certain types of statements about sex and gender identity criminal in themselves, the freedom to do so without risking at least serious disruption to life will now rest wholly on what frontline police officers decide in practice a “reasonable person” might judge “abusive” here.

Given the evidence presented to the parliament, and the passage of the bill to date, that feels like a very thin blue line, making Scotland look an increasingly hostile place for anyone who believes it is ever important to have the freedom to see, name and discuss the relevance of sex.

Later that day — March 10 — The Scottish Sun posted an article: ‘Hate Crime Bill: Humza Yousaf faces anger as law gives protection for “cross-dressers” but not women’.

Humza Yousaf is Scotland’s justice secretary.

The article says, in part:

The Justice Secretary’s controversial law introduces an offence of “stirring up hatred” against groups with “protected characteristics” of race, religion, disability, transgender identity, sexual orientation and age – punishable by up to seven years in jail …

But Labour MSP Johann Lamont – backed by a list of other MSPs – were angry that the Bill does not provide protection for women, but does for cross-dressers.

Tonight, Ms Lamont said that the Scottish Government recently confirmed that they hold no data on cross dressers being a target of hate crime – despite collecting data on the characteristic from 2009.

However, she pointed out that women, goths, and homeless people are not covered by the Bill – despite plenty of evidence they have been targeted for serious offending. 

Ms Lamont told the Scottish Parliament: “The Cabinet secretary has talked about ‘a man who is not a trans woman but wears a dress for a drag performance’. 

“The Equality Network has brought up the example of a man dressing up for a night out at the Rocky Horror Show, and also of men who cross dress for what they term ‘emotional need’. 

“When women are would be likely to be recognised as cross dressers is obviously much less clear. 

“Why do we believe occasional hatred to crossdressers should be covered in this bill, but not hatred towards all the other groups I have mentioned, but most especially women.”

In response, Mr Yousaf said: “In my view these amendments would limit the protections in the Bill and remove protections already provided within the existing definition of Transgender identity within the offence as aggravation by prejudice, Scotland Act 2009. 

“While ensuring existing protection is not lost which is a very important point indeed, people who cross dress are also included in the Bill because they experience hate crime.” 

However, SNP and other MSPs rejected separate amendments that would have added sex to the protected characteristics, and also removed the protection for cross dressers from the Bill.

The move prompted outrage online with thousands of women posting the hashtag #iamthestorm in response to sex not being included.

One woman fumed: “Welcome to McGilead, a country so progressive that men on a stag do, wearing dresses, have more rights than actual women.”

Another said: “Scotland, under the first female FM, has become a place where women discussing, challenging and debating issues regarding their sex is fast becoming a crime. They can’t win the argument so they have made the argument a crime.”

The pro-independence SNP lead Scotland’s parliament. Nicola Sturgeon is First Minister.

Yet, not everyone in the SNP was on board with the law, including former deputy leader Jim Sillars:

https://twitter.com/ryancapperauld/status/1369685153661018113

Local and parliamentary elections will be taking place in May.

George Galloway, a Scot who moved back to his homeland from England to run for office, is part of the new political party, All(iance) 4 Unity, standing in direct opposition to the SNP, agreed with Jim Sillars:

The BBC reported that Scots are concerned about conversations they have in their own home:

Scottish Conservative MSPs Adam Tomkins and Liam Kerr have proposed amendments that they say will protect free speech in private – something the new law doesn’t offer.

Their amendments are related to the so-called “dwelling defence” that already exists in relation to stirring up racial hatred.

Mr Tomkins – who is also convenor of Holyrood’s justice committee – said his move to protect speech “wholly in private” is in line with the right to respect for privacy and a family life.

He told BBC Scotland: “I’m not seeking to insulate everything that happens in the home.

“But I am seeking to say there is a zone of privacy that is protected by European human rights law. We all have the right to respect for our private and family life.

“If something is happening wholly in private, with no public element at all, then it should be safeguarded from the Hate Crime Bill.”

Mr Yousaf said: “If you are sitting round the dinner table having a debate about transgender identity and your view is that a man can’t transition to a woman, that won’t get you prosecuted.

“If your behaviour is found to be threatening or abusive by a reasonable person and it was intended to stir up hatred – and that can be proven beyond reasonable doubt – then you will be prosecuted.”

The bill came up for final debate and successful vote on Thursday, March 11, having overrun from Wednesday. The debate can be viewed here.

Pete (Runrig) Wishart, an SNP MP in Westminster, seemed critical of the Conservatives, the only party opposing the legislation:

Would that other parties had opposed the bill:

The pro-independence site, Wings Over Scotland, strongly objected to the bill’s passage. In ‘The Wrecking Crew’, the Rev Stuart Campbell, who founded the site, wrote:

For the last couple of years this site has been critical of the SNP’s failure to make any sort of progress on independence. But this is far, far worse even than that. Because if they somehow miraculously achieved independence tomorrow, we’d be afraid to live in the Scotland they’re creating.

Our country doesn’t have a SINGLE political party remotely fit for government. Voters in May face a choice between the evil, the stupid, and the evil and stupid. And they can’t even be angry about it, because even the politest anger is now a hate crime.

We wish we had a constructive course of action to suggest to you, folks. But we don’t, because democracy has failed you. There is no way you can vote that will fix the ruins the SNP have made of Scotland. We cannot see a way forward. It is becoming nearly impossible to evade the conclusion that all is lost. Nicola Sturgeon has destroyed it.

The deputy editor of Country Squire magazine tweeted his objections to the bill:

Women are concerned that seeking the privacy of a ladies’ restroom is under threat as a man who self-identifies as a woman will have more ‘right’ to use that facility than they:

https://twitter.com/resignsturgeon1/status/1370691848746991619

Lily of St. Leonards posted on the ethical dilemmas in this legislation involving a potential confluence between a variety of hate categories. ‘Humza’s hate crimes‘ is well worth reading in full. On women, she says:

If I am taking off my clothes in the woman’s changing area of a swimming pool and I see someone with male anatomy, am I allowed to politely ask them to leave? What if this person says, “I am a woman” and finds my attitude hateful, insulting and discriminatory? Will I be convicted of a hate crime in Scotland if I tell the person I don’t believe it is possible for men to become women?

For female politicians on the left, however, the problem goes much deeper. Some have been the subject of truly hateful, obscene messages for not toeing the party line on sexual identity, as The Herald‘s Kevin McKenna pointed out on Sunday, March 14 in ‘Hate Crime Bill: Do women’s rights not matter to this authoritarian SNP?’ He wrote:

The problem here though is that, judging by social media, the SNP has been hollowed out by a vociferous group of illiberal nasties who seem determined to view reasonably-expressed opinions – especially around gender – as evidence of hate speech.

A significant number of them also seem to derive pleasure from threatening women (never men), both online and in person. Joan McAlpine, the most prominent SNP critic of the Hate Crime proposals has had a target crudely drawn on her Twitter profile amidst explicit threats of sexual violence towards her. Other female members have left the party because their own complaints about similar treatment have been ignored by the leadership.

Joanna Cherry is an SNP MP at Westminster who has also been the subject of a vicious campaign:

I’ve previously been disobliging of several of Nicola Sturgeon’s Labour predecessors but none would have scoured the floor of the swamp as she did a few weeks ago when she whistled up the bullies on the party’s scarecrow wing before sacking Joanna Cherry from the front bench of her Westminster team.

Yesterday, at Edinburgh sheriff court a man pled guilty to sending Ms Cherry messages that were grossly offensive, menacing and included threats of sexual violence. The messages were sent days after the First Minister’s intervention.

Ms Cherry says that allegations of transphobia made against her from within her own party “put a target on her back”.

This week Ms Cherry was the only Scot named on a list of the 100 most inspirational women at Westminster. In the SNP, though, she is considered a pariah and has endured a two-year campaign of intimidation and bullying. This is a party where strong, talented women of independent minds are considered a threat rather than an asset. Its failure to make sex a protected characteristic in their Hate Crime Bill is the final proof – if any were still required – that the SNP does not take women’s safety and wellbeing seriously.

Joanna Cherry has also been a QC (Queen’s Counsel) since 2009:

Regular readers of McKenna’s columns point out that his critical article could mark a turning point for the SNP:

https://twitter.com/SmithScore/status/1370824632568274951

Jamie Blackett, the leader of the new All for Unity (Alliance4Unity) party of which George Galloway is a member, says that this legislation creates a dangerous precedent:

As Lily of St Leonards notes in her aforementioned post:

Nothing should limit my right to write freely about any topic including even if other people find that writing hateful and insulting. Letting their perception of hatred limit my ability to write and speak freely means there is a special group of people living in Scotland who can in theory control what the rest of us say write and do. But it is mere prejudice that elevates these people above everyone else and it is disgraceful that the Scottish Parliament has in effect created a form of reverse Apartheid in Scotland.

This also means that teasing — called ‘flyting’ in Scotland — is out, as Iain Macwhirter pointed out in ‘So what will independence be if SNP no longer protect freedom of speech?‘ for The Herald:

The abuse is, of course, an ironic form of affection, of bonding – a demonstration that your relationship is so strong that you can playfully abuse each other. But it’s something that is almost impossible to explain in the age of social media and the tyranny of the literal. And with the SNP’s Hate Crime Bill now passed into law, flyting is finally grounded.

He points out that hate crimes have already been covered under legislation for 11 years:

threatening and abusive behaviour is already illegal, not least under the 2010 Criminal Justice Act. Incitement to racial hatred is also illegal.

Existing legislation means that even a passer-by could notify the police:

You don’t even have to be a “victim” yourself. Anyone who overhears something offensive can report a hate incident and the police will be required by law to record it. This will rarely lead to actual prosecution, but it carries a punishment nevertheless. The mere recording of a hate incident will hang around the neck of whoever is accused of it, and could be dredged up when they apply for jobs involving childcare or race relations.

It looks as if the only recourse will be the courts. Such an action has worked before:

Most ordinary SNP members are mystified as to why the Hate Crime Bill ever saw the light of day. It threatens to be even more perverse and indiscriminate than the Scottish Government’s Offensive Behaviour at Football Act, which criminalised football supporters and had to be repealed in 2018. It is arguably worse than the named persons scheme, which sought to install a state guardian for every child, and was struck down by the UK Supreme Court because it infringed the European Convention on Human Rights.

All for Unity pledge to repeal the new legislation if they win a majority in May:

As Spiked noted:

Scotland is in serious trouble of becoming the land of the unfree.

Indeed.

It will be interesting to see how this plays out between now and May’s local elections.