Will opposition to Nationalism be a crime? Let’s not give them ideas…
IT’s the ambition of all repressive states to control what is said or even thought about them.
Dissent must be quickly crushed, so there are show trials or, as in modern-day China, internet censorship.
We live in a parliamentary democracy where free speech is celebrated as one of our hardest-earned freedoms.
But the SNP’s planned hate crime legislation represents an erosion of those fundamental liberties.
As always, it’s presented as an entirely reasonable set of proposals that only the misguided or bigoted would oppose.
It might strike you as a bit rich for the SNP to be preaching about hate when sections of the party and its support base are blighted by blatant prejudice.
Echoing the Named Person row, we can be sure that this proposed law will be viewed through the prism of the constitution.
Critics will be accused of trying to undermine the Bill because they’re Unionists, not because they have legitimate concerns.
Some of those making that claim will doubtless be tweeting their fury as they stand on motorway bridges waving black Saltires to protest against English tourists.
Justice Secretary Humza Yousaf insists the Bill ‘will not prevent you expressing controversial or offensive views’.
Although if you do express a view deemed to promote hate then you could be jailed for up to seven years.
The Bill widens the definition of a hate crime to include age, disability, religion, sexual orientation and transgender issues as well as race.
Mr Yousaf assures us we can still say offensive things, but cautions: ‘Just don’t do it in a threatening or abusive way that is likely or intended to stir up hatred.’
Of course, this is a central tenet of our law as it stands: the idea that you can say in public broadly what you want, unless you’re inciting a riot.
There are other curbs – in print you have to abide by court orders and it’s generally a bad idea to defame anyone, but these are all sensible measures.
One of the problems with the hate crime law is the definition of ‘stirring up’, which is an odd phrase and open to multiple interpretations.
The law would also apply to published material which is considered to be ‘inflammatory’.
Yet some of the greatest novels in English literature, including Ulysses by James Joyce, were banned and even burned because they were seen as too lewd.
Legal draughtsmanship is a persistent weak point: remember the abortive ban on sectarian singing at football matches, which had to be rescinded?
(Humza Yousaf: will he listen to criticism?)
So the Hate Crime Bill is poorly worded, vague, and not actually needed, either, but that hasn’t stopped Holyrood before.
The omens aren’t good: the Law Society of Scotland believes the new Bill ‘presents a significant threat to freedom of expression, with the potential for what may be abusive or insulting to become criminalised’.
Its president Amanda Millar said the body has ‘significant reservations regarding a number of the Bill’s provisions and the lack of clarity, which could in effect lead to restrictions in freedom of expression’.
She added: ‘We have real concerns that certain behaviour, views expressed, or even an actor’s performance, which might well be deemed insulting or offensive, could result in a criminal conviction under the terms of the Bill as currently drafted.’
If you don’t have the backing of the practitioners on the sharp end of making this work, alarm bells should ring.
They sounded loud and clear when the Named Person scheme ignited widespread opposition among parents, lawyers, police, and childcare professionals – which government ignored, before ultimately dropping the idea.
It took a Supreme Court case, funded by campaigners, to prompt a review of the policy, though government delayed for as long as possible before ditching it (having wasted millions of pounds and countless man hours).
More than just ignoring them, ministers and their supporters sought to demonise those who spoke out against it.
Indeed, in 2016, Mr Yousaf, then the SNP’s Europe Minister, claimed opponents of the Named Person plans were putting children’s lives at risk.
And SNP MSP John Mason suggested some of its critics might be child abusers.
Were these attempts at ‘stirring up’ hatred to try and contain the backlash against Named Person by smearing its detractors?
Whatever the intention, Named Person foundered when it became clear it was damaged beyond repair, and – more importantly for the SNP – a vote-loser.
Then there’s the trickier matter of who on Earth makes these judgments about what is hateful and therefore beyond the pale, and what isn’t.
Police spend a lot of their time already responding to complaints about online hate crime but their workload could be about to rocket.
The boundaries begin to blur and the politicisation of police and the judiciary becomes an inevitability.
That’s because what we’re talking about here is an attempt by the state to assert certain beliefs as sacrosanct and unchallengeable.
But they aren’t – they’re deeply contentious; in this context, the Bill is. a woke charter which – once enshrined in law – will be difficult to shift.
It’s a boost for Twitter mobs who band together to ‘cancel’ celebrities such as JK Rowling, now almost a pariah among transgender activists and even some of her fan-base.
Roddy Dunlop QC, Dean of the Faculty of Advocates, is right to warn that ‘cancel culture’ is ‘toxic’.
He said: ‘It’s 2020’s equivalent of villagers with torches and pitchforks. If you disagree with someone’s opinion, rather than demand their head, defeat them in debate.
‘If you cannot, maybe that speaks for itself. Leave the pillory in the 18th century please.’
The only way to avoid falling foul of this law, if it is ever enacted in its current form, is to stay below the radar and not express views that might be questionable.
That’s bad news for democracy (and indeed newspaper columnists), but you can see why it might appeal to the SNP, which has presided over a burgeoning secret state.
After all, among its first actions when coronavirus hit was to make it easier for public bodies to dodge scrutiny under freedom of information legislation.
A law such as the one Mr Yousaf is now championing could be a useful tool for a government that has a pretty low tolerance for anyone who disagrees with it.
Perhaps even opposition to nationalism will be added to the list of proscribed opinions – but maybe we shouldn’t be giving them ideas…
In the meantime, more footling matters such as the long-shelved Education Bill are placed firmly on the backburner: well, at least we know where the SNP’s priorities lie.
The state should spend more time strengthening the cornerstones of our proudly democratic society rather than trying to remove them.
Now it’s up to MSPs to ensure this cack-handed and unnecessary Bill doesn’t pass into law and strip us of cherished freedoms – because once they’re gone, they may never be restored.
*This column appeared in the Scottish Daily Mail on July 28, 2020.