You can’t destroy free speech in a doomed struggle to eliminate hate

YOU have to hand it to the SNP – just when you thought it couldn’t get any more illiberal, it produces the Hate Crime Bill.

Named Person had a good claim to be one of the most sinister laws ever to gain parliamentary approval.

It proposed mass surveillance of children but was belatedly binned after a devastating judgment by the Supreme Court.

By now, you might have thought the Nationalists had learned their lesson, but they’ve outdone themselves with the hate crime crackdown.

It’s framed as an attempt to combat the kind of prejudice all of us should abhor, and to that extent it deserves to be taken seriously.

Yet, as with a lot of Holyrood legislation, there’s duplication and overlap: the law already safeguards free speech within certain boundaries.

And there are tough sanctions for crimes which are – for example – racially aggravated: so is this another case of law-making for the sake of it?

There are problems we can’t legislate out of existence, and ‘hate’ is probably one of them – you can’t arrest your way to a hate-free society.

But a Bill that proposes jailing people for up to seven years for ‘stirring up’ hatred (longer than the average sentence for rape) is an unacceptable price to pay for the pursuit of laudable aims.

Tomorrow, the Tories have called a debate asking MSPs to back withdrawal of the Bill.

It’s worth remembering Named Person was voted through before being shot down by the UK’s most powerful judges, so Holyrood doesn’t always offer a bulwark against the barmy and the misconceived.

But it’s also a test for the Greens’ supposedly liberal credentials: how meaningful can those be if they revert to type and bail out their SNP masters?

The debate is an opportunity to show Holyrood is capable of making grown-up laws that go beyond the politics of the student union – traditionally not its strongest suit.

Take a look at the breadth and ferocity of opposition to this badly drafted Bill, now under fire on all fronts.

It’s no wonder rank-and-file police officers are concerned about the costs of training, which they say have been grossly underestimated.

They have also warned trying to formulate a deeply contentious piece of legislation in the midst of a global pandemic, which has put massive strain on all public services, is inadvisable.

And they anticipate a backlash against the law if its becomes as a reality, with police increasingly playing the role of arbiter in disputes about what can and can’t be safely said in public forums.

The Catholic Church in Scotland fears the law as it stands would even lead to the banning or at least censorship of the Bible.

That’s because it could be deemed ‘inflammatory’: could campaigners use the law to have sections of the holy text in public libraries blanked out?

The difficulty is that hate is sometimes subjective – some will be outraged by certain comments, whether written or spoken, while others will be indifferent.

(Humza Yousaf: is he really in listening mode?)

And who decides what’s acceptable, and what is likely to generate hate? We’re told this will fall to the police and ultimately the courts, which are dealing with a huge backlog of cases caused by lockdown.

Meanwhile it’s easy to see how this law could benefit administrations unscrupulous enough to abuse the legislation.

Under future amendments, its scope could widen: perhaps political attacks on the ruling party, or its agenda, would constitute hateful or inflammatory behaviour.

After all, some politicians seem to favour free speech only when it favours them, as evidenced by Labour MP Dawn Butler who praised Extinction Rebellion for disrupting distribution of national newspapers at the weekend.

More broadly, writers including Val McDermid (an independence supporter), artists and actors worry that their productions could constitute a breach of the proposed hate crime legislation.

The BBC has echoed the fears of the newspaper and wider media industry over the threat to freedom of expression.

The last thing Twitter mobs need is any measure that stokes ‘cancel culture’ – the vilification of public figures, or indeed anyone with any position of responsibility, who has the temerity to say what they actually think.

Criminalise those who point out the lunacy of the bilge that circulates on social media forums, and you risk emboldening those self-appointed commissars of political correctness who specialise in hounding celebrities such as JK Rowling.

Some may wonder if there’s an element of hyperbole here: surely the government of a democratic country wouldn’t countenance the possible diminution, or indeed demolition, of free speech?

But good intentions alone aren’t enough to ensure those dystopian consequences don’t come to fruition.

Among the SNP’s first responses to the pandemic was the weakening of freedom of information laws, and a plan to scrap jury trials.

True, those were extreme circumstances, and in both cases there were U-turns (after intense protest).

But they demonstrate the necessity of placing curbs on the power of the state.

And they show how easily well-intentioned proposals can get out of control, as the Named Person fiasco also underlined.

Quite apart from these concerns, as important as they are, there’s growing evidence that frankly no-one tasked with implementing this law is confident it would work in a way that doesn’t endanger free speech.

Among the critics lining up to raise serious questions about the Bill, or condemn it outright, are the Law Society of Scotland and the Faculty of Advocates – again, those at the business end of making this work.

The Senators of the College of Justice – which represents the country’s most senior judges – highlighted ambiguity in the wording of the Bill.

The SNP has form for ignoring top judges, not least when almost without exception they spoke out against an abortive bid to scrap the historic principle of corroboration, which required evidence in criminal cases to be backed up by two sources.

Alarm bells should be ringing now that the legal profession is united in its rejection of the Bill.

It emerged last week that an unprecedented 2,000 submissions had been made to the Scottish parliament’s consultation on the proposed law.

Ministers have been in conciliatory mode in recent days, with Nicola Sturgeon even signalling the possibility of a U-turn.

Again, listening to constructive criticism isn’t a strength of the SNP – opponents of Named Person (many of them parents) were all too often ignored, or dismissed, largely on the grounds that they were Unionists.

We can’t afford for this to become another debate that is fought on narrow constitutional lines.

Withdrawal of the Bill, allowing a return to the drawing-board, is the safest course of action while we battle coronavirus and looming economic turmoil.

But the SNP has to learn to keep its authoritarian instincts – and its innate tribalism – in check.

The stakes are simply too high for another monumental blunder on the scale of Named Person.

This time around, ministers should listen to their critics and scrap a Bill that threatens to destroy one of the cornerstones of our democracy.

*This column appeared in the Scottish Daily Mail on September 8, 2020.