I write this on Easter Sunday, 2024, 31st March. Tomorrow is April Fool’s Day, and the new Scottish Hate Law comes into being at midnight tonight.
It is apt that it comes into force on such a day as April Fool’s, for the law is ill conceived, intrusive, and will, I believe, be next to impossible to enforce.
Why am I, living in England, concerned about a law in Scotland?
But before we go into that, let me explain why I am writing about this on my marketing blog. Why should the intricacies of Scottish Law, a country of which I am not a resident, be of interest? I suppose I could venture to suggest that I see such a law as the ‘thin end of an unpleasant wedge’ that once gets jammed into our society could be hard to remove.
I also believe it is an insidious attack on free speech, and as a writer with three published novels under my belt, (all of which I have been assured by my relatives are as yet unrecognised masterpieces), I believe it could stifle creativity and the arts.
And at a time when a Russia, made mad by its leaders and poisoned by fake history, is a threat to Europe and much of the world, it seems incorrect to be bringing in such a law at this time. I grew up with the Cold War fear of nuclear warheads raining down on us. I remember, as a youngster, the hushed silence when we saw Threads back in 1984, a film I was too young to understand but which, being based in Sheffield (and where we were living at the time), made the fear all the more local to me.
A warning from one of the most important books of the 20th century:
Years later, after the breakup of the USSR, my own interests led me to the works of the likes of Hannah Arendt’s ‘The Origins of Totalitarianism,’ published in 1951 (You can view it on Amazon by clicking the image). Arendt herself is one of the most important political theorists of the 20th century, and born in Germany in 1906, in today’s Russian enclave of Kaliningrad, she was a Jew who saw tumultuous times in Europe.
Following WW1 she lived as a student in Berlin, in the time of the Weimar Republic and Bauhaus design movement: it would have been a chaotic, fraught, dangerous and no doubt an exhilarating period for such a young mind, and one in which impressions would have been made that would no doubt dictate the course of her brilliant life.
After completing her dissertation in Heidelberg, she returned to Berlin in 1929, only to be arrested by the Gestapo in 1933 for anti-state propaganda, and served eight days in prison. That year was a turning point in Germany’s history and a key year for Hitler’s rise: it saw him become Chancellor, the Reichstag Fire, and the suspension of civil liberties.
Arendt used her last years in Germany to help fugitives escape the country, and in 1933, realising the political situation in Germany meant she was no longer safe, she relocated to Paris, where, in WW2 she was interned but luckily managed to escape to America. (Perhaps not a coincidence, the famous biographer of Berlin in the 1920s, Christopher Isherwood, also left Germany in 1933 too - hopefully the Scottish law won't have quite such a chilling effect this time round).
Key to Arendt’s work, and a founding tenant of her belief in combating totalitarianism, was her idea that spontaneity amongst the citizens of a country could hold back such controlling forces, and that it was loneliness and isolation that makes the appeal of totalitarianism such a magnet. In her own words, she describes this concept - and it is as familiar a refrain today as it was back in the 1950s:
“... Intellectual, spiritual, and artistic initiative is as dangerous to totalitarianism as the gangster initiative of the mob, and both are more dangerous than mere political opposition. The consistent persecution of every higher form of intellectual activity by the new mass leaders springs from more than their natural resentment against everything they cannot understand. Total domination does not allow for free initiative in any field of life, for any activity that is not entirely predictable. Totalitarianism in power invariably replaces all first-rate talents, regardless of their sympathies, with those crackpots and fools whose lack of intelligence and creativity is still the best guarantee of their loyalty.”
What does the Scottish Hate and Public Order Act mean for such spontaneity?
Spontaneity, such as that found in the Edinburgh Fringe, or indeed my local pub, and the culture of political and self-deprecating mockery, prevalent through British humour for centuries, could well be under attack from this law.
Firstly, the law covers anything said anywhere - be it on social media or even in your own home. Secondly, it allows for anonymous reporting via ‘third-party reporting centres,’ which are available on university campuses, and even a Glasgow sex shop!
Furthermore, and despite assurances from the Scottish police who claimed they would not pursue ‘vexatious’ allegations, they have pledged to investigate every hate crime report they receive. The case of Murdo Fraser’s (a Scottish Tory MP), who was reported for a social media comment that led to him having made a ‘hate incident’ on his record, illustrates how badly this law will be enforced. If the police are confused by it, then the public will certainly be unsure of what is permitted.
The public’s awareness of this is key, as according to Tony Lenehan KC, that “the public knowing what is and what is not a crime is a vital part of any democracy.” He is absolutely correct.
Will this cause people to ‘self-censor’ their comments, writings, and thoughts? I think it most likely will. From April, spontaneity will be have to be planned in advance!
Legislation worthy of an April Fool’s Day Joke!
Indeed, on the two hours training that the Scottish police received to help enforce this new order, it was revealed that some plays ‘may no longer be performed.’ The general secretary of the Scottish Police Federation has gone on record as saying that police won’t have time to deal with these incidents, and that it was a ‘recipe for disaster.’ A London barrister who specialises in public law and human rights and who is critical of the order, has suggested that the vast majority of books written before the twentieth century would now be unpublishable. JK Rowling has been advised by one lawyer to delete many of her previous tweets, to which she has responded with a resounding ‘NO!’ (a most excellent choice too!).
It looks to be shaping up as a truly giant April Fool’s Day mess of legislation, punishable by up to seven years in jail.
And it will only serve to have the opposite of what it was intended: it will polarise society rather than protecting anyone.
How did Scotland let this pass and why should we be worried?
This legislation has primarily been driven by Scotland’s First Minister, Humza Yousaf, from way back when he was Justice Secretary. It has never been welcomed by Scottish police either, who claimed in 2020 that it ‘could devastate the legitimacy of the police,’ and also “cause a significant increase in police workload and demand, complicating the law with new rules which are too vague to be implemented.”
Humza Yousaf is also on record for a comment he made in 2021, to BBC Scotland: "I don't accept that this curtails free speech at all. Free speech in itself is never an unfettered right.”
This, to me, is unsettling. It illustrates a body of people in control of Scotland’s government who are passing poor legislation which will do more harm than good. And it is not good enough for the Scottish police to say “we won’t pursue actors who appear in a production that might be reported for a hate crime.” These things need to be defined into the law itself, so that no subsequent drift in attitudes a year, or five years, down the line can allow the authorities to prosecute who they wish.
It also indicates an obsession with legislation and state control and intrusion into private lives, and, with the election victory in the UK of what looks to be a Keir Starmer premiership later this year, it might encourage more such intrusion throughout our island home. It must be fought, and if it is not fought then more of it will follow.
But what can we do about it? Let’s constipate the government!
A law that is demonstrably unable to be enforced will quickly have to be re-written. The Scottish police have already said they don’t have the time to investigate many of the expected claims, but I think we should form a movement.
I think we should start reporting as many people as we can who have crossed the slightest line: clog up the system so much that the Scottish government is forced to admit the glaring errors in its legislation. Force them to repeal it and remove it altogether - for it must be withdrawn to make sure we, or those citizens who come after, are not subject to the whims of any future police, political movement, or party, should they decide to use it to persecute a certain segment of their society.
Old laws being left on the books have mutated to serve a different purpose as societies have evolved: From the Suspected Persons laws in the UK that gave police the ability to arrest individuals suspected of intending to commit a crime (from 1824), these laws were disproportionately applied against Black and ethnic minority youths in Britain in the 70s and 80s. Further afield, the Witchcraft Suppression Act (1899) in Zimbabwe has been used to target elderly women in more recent times.
What should we do instead of passing another law that no one understands and is impossible to enforce?
According to Scottish police, the most likely people to commit a hate crime will be isolated young men, with feelings of being economically and socially disadvantaged. Often being men who suffered from ‘adverse childhood experiences,’ it seems that they are trapped in poverty. Locking them up for seven years isn’t going to solve this problem. Nor will having a ‘hate incident’ on their record.
But what can be done is to get them more involved, especially with the people they are claiming to hate. I recently wrote an article “How to reduce my child’s time on social media?” This highlighted the existence of echo chambers, and how they polarise a person’s view. One solution is to introduce people to differing points of views, and this has done in a face to face setting.
In fact, the New York Times conducted a series of meetings with people of different political leanings back in 2019. Face to face, airing disagreements, it enabled people to see the other point of view and allowed participants to find common ground with one another. I believe that would be a better way forward for any society over locking people up, which would also be expensive. Perhaps we should even have a class for teenagers in schools, where different points are expressed and debated?
We cannot ignore the warnings of history:
Many might laugh at my using Arendt’s work as a caution for what is basically ill thought out and badly constructed legislation, but consider the timeline of her life: in Konisberg when she was young she would have seen the Socialist uprisings in Germany at the end of WW1, and a short time later the USSR oppress the Baltic states just over the border. In Berlin she would live through the chaos of the Weimar Republic and as both witness and enemy see firsthand the rise of Nazism. Later in her life she would see the battles and trials of the McCarthy era.
Would we be in any way wise to ignore someone of such experience of both right and left wing extremes? Are we, in our society, in the comfort of the 21st century, more knowledgeable than her in these issues, or do we just scream louder upon the platform of social media?
I believe her words should be treated as both wisdom and warning in our fractious times.
Oh, and I fully expect JK Rowling to be arrested and on her way to Scotland’s version of Guantanamo Bay by midnight on April 01st! Any bets?
In the meantime, I'm buggering off out to enjoy a pint at my local pub and to engage in a few acts of self-deprecating spontaneity! I suggest you all do too! Happy Easter!
SOURCES:
Police promise to investigate all hate crime allegations, but not the vexatious ones!
Murdo Fraser legal threat to Scottish police over hate incident:
London Barrister Francis Hoar: “Law threatens the publication of nearly all books published before the twentieth century.”
JK Rowling refuses to delete Tweets:
Scottish police speak out against proposed law & Humza Yousaf’s comments on free speech: