Scotland’s hate crime law fiasco offers Ireland a playbook in how not to do it

In the first 48 hours after Scotland’s new hate crime legislation came into effect last Monday, complaints flooded in at a rate of one every 90 seconds.

One of two things was going on. Either Scotland had just been unveiled as a cesspit of abuse and hatred, or the legislation had tottered straight off the pages of the statute books and into the claws of the culture wars. On April Fools’ Day, no less.

The mystery about which scenario was more plausible was quickly solved. There were two front-runners for the gong of “individual most complained about”: JK Rowling and Scottish First Minister Humza Yousaf.

Yousaf was the subject of complaints over comments he made about race in 2020. The complaints about Rowling related to tweets she had posted on X, in which she posted images of a number of trans women – convicted sex offenders, trans activists and other public figures – and referred to them by incorrect pronouns. “If what I’ve written here qualifies as an offence ... I look forward to being arrested,” she declared. She wasn’t, and neither was Yousaf – which seemed to bear out what supporters of the legislation have said. There is a high bar for prosecution. Just being cruel doesn’t make the grade.

What’s the right age for my daughter to get a smartphone? I asked her older siblings

---

We’re heading towards AI prices, where diners can be charged more because algorithms say they can afford it

---

‘No bull, no spin’: The problem with a Taoiseach who is extremely online

---

Scotland’s hate crime law fiasco offers Ireland a playbook in how not to do it

---

Two tests must be met. An incident must involve behaviour that a reasonable person would find threatening or abusive, and they must have intended to stir up hatred against an individual who is a member of a protected group. There is a protection for being shocking or offensive, and intentionally misgendering someone is not a crime – although it is astonishing that it was left to Rowling to clear up that confusion.

For a law that has been wending its way tortuously through the legal process for years, rather a lot seems to have been filed under “ach, we’ll figure that out later”. The most significant omission, as far as critics are concerned, is that biological sex is not included as a protected category. Some see this, not unreasonably, as trans women being afforded protections not available to women generally. The promise that there are plans to address this in a separate law on misogyny has not reassured critics.

Concerns have also been raised about enforcement, and whether police are adequately trained to decide what meets the bar for prosecution. One of the more outlandish interventions – first mooted, in all seriousness, by supporters of the legislation and later latched on to by opponents – involved the spectre of straight men dressed up for a performance of the Rocky Horror Show who could qualify as victims of a hate crime.

The sense that the police and politicians were making it up as they went along was not helped by the appointment of 500 Orwellian-sounding “hate crime champions” and publication of 400 “third-party hate crime reporting centres”. The list of places you can make an anonymous complaint includes mosques, students’ unions – plus a salmon and trout farm in Berwickshire and a sex shop in Glasgow.

Public confidence was not bolstered either by a bizarre advertising campaign by Scottish police, featuring an agricultural-looking chap called the “hate monster”. “The hate monster wants ye tae feel like ye need tae show you’re better than them. Then, before ye know it, ye’ve committed a hate crime,” it booms. In fact, the requirement for intent makes it impossible to commit a hate crime “before you know it”.

[ ‘Hate speech’ Bill: What’s in it and should we be worried about intrusion on right to free speech? ]

From Ireland’s point of view, the best thing you can say about the Scottish experience is that offers a playbook for how not to do it.

The fate of the hate offences Bill here remains uncertain, despite a pledge by Simon Harris to proceed with it. The Bill’s broad coalition of critics – which includes Michael McDowell, Charlie Flanagan, Elon Musk and their unlikely recent allies in Sinn Féin – could rightly point to the Scottish experience as an example of what can happen when key concepts including “hate” and “gender” are ill defined.

It would be tempting for the Government to let this one quietly drop, but there are compelling arguments why it must go ahead, including a 29 per cent increase in reported hate crimes in 2022 and an increase in arson attacks of 11 per cent in 2023, possibly linked to attacks on asylum-seeker accommodation.

LGBTQ+ people say they feel less safe on the streets following a surge in incidents of abuse and assaults. Women journalists and politicians are routinely abused on social media; some male politicians have cited the toxicity in public life as a factor in their decision to retire.

Meanwhile, a handful of aspiring politicians are normalising rhetoric and tactics that would have been unimaginable even a few years ago. In a 24-hour period this week, a candidate in the upcoming local elections, Gavin Pepper, posted videos to his X platform of himself shouting at Hazel Chu on the street, and another he filmed outside the tented encampment on Mount Street which he captioned, “Where are the missing children?”

Would those type of incidents meet the bar for hate speech? Unlikely, because free speech is rightfully protected here too. If the legislation is passed, despite the air of semi-hysteria surrounding it in sections of the UK media, it would be still be almost impossible to go around accidentally inciting hatred. As JK Rowling discovered, even when you really set out to deliberately push the boundaries, it is not easy.

Hate-speech legislation does not stifle free speech. It doesn’t solve the problem of the new nastiness creeping into public life either: it won’t prevent vulnerable groups being targeted, or allay the fear a migrant or an LGBTQ+ person might experience just walking down the street being themselves. But it does send a message that, in a civilised democratic society, there is a line that must not be crossed.