First minister of Scotland Humza Yousaf’s illiberal hate crime act is now in force and its first day has been a doozy. The Scottish National Party’s minister for victims and community safety Siobhian Brown admitted on the BBC Radio 4 Today program that Scots could be investigated by the police for “misgendering” trans people. It was revealed that one-third of police officers has still not received training on the legislation. J.K. Rowling posted a thread on Twitter discussing a number of transgender women and stated that all of them were men. The author, who is currently out of the country, added that, if saying this represents a criminal offense under the hate crime act, “I look forward to being arrested when I return to the birthplace of the Scottish Enlightenment.” (Police Scotland has since clarified that said tweets are not criminal.)
The hate crime act creates a new offense of “stirring up hatred” against a long list of “protected characteristics.” These are: “race, color, nationality (including citizenship), or ethnic or national origins… age, disability, religion or in the case of a social or cultural group, perceived religious affiliation, sexual orientation, transgender identity [or] variations in sex characteristics.” The law applies to all forms of communication, from spoken conversations to private WhatsApp messages, and since there is no dwelling defense, Scots will be liable for prosecution for things they say in their own homes. Penalties include fines and prison sentences of up to seven years.
Women’s rights campaigners are concerned that extreme trans activists will use the legislation, introduced by Humza Yousaf and passed with the help of Labour, the Greens and the Lib Dems, to set the police on opponents of gender ideology. Under the new act, it is not a crime to stir up hatred against a woman because of her sex but it is illegal to intentionally promote hatred of men who cross-dress as women.
The hate crime act, like new plans to criminalize parents who try to stop their children changing gender, is born of elite paranoia about the general public. To politicians and civil servants, journalists and academics, third-sector bods and activists, the masses are in the grips of every brand of racism and “phobia” imaginable. Only through conditioning by law, policy and public information campaigns (see Police Scotland’s “Hate Monster” and the Scottish government’s “Dear Transphobes” advertisements) can the hate-filled hoi polloi be conditioned out of their bigotry.
These ruling class anxieties, which can be filed alongside “disinformation” and “dark money,” are really expressions of unease with the increased democratization brought by new technology, changing attitudes and evolutions in how the business of politics is conducted. And while these anxieties are common in elites across the West, in Scotland they coincide with a flawed parliamentary and governing system that is not fit for purpose. With devolution, power was concentrated in a strong executive, with the expectation that Scotland would continue to be the Labour fiefdom it had been since the 1960s. The Tories, for their part, came along and compounded the error by radically expanding the devolution settlement.
An overly mighty executive is dangerous enough in any political context, but in a country run by a tiny, middle-brow elite; prisoner to a suffocating progressive consensus; where civil society sees its job as echoing rather than challenging government talking points; and where the powerful face only limited journalistic or other scrutiny, it is a recipe for bad laws, poor policy, dire outcomes and a political sclerosis that serves the establishment by making reform impossible. It is, in short, how you end up with the hate crime act.
I’ve previously argued for devolution reform, even though there is little chance of that ever happening. The consensus not only at Holyrood but among the dismal political, policy and commentary elites at Westminster is that the only kind of reform allowed is further expansion of the powers of the Scottish parliament. In fact, the reform needed is one that reserves to Westminster all matters of rights, equalities, and liberties so that, whether it’s regulating “hate” or introducing “gender self-ID” or banning desperate parents trying to save their offspring from gender ideology, there is one law across the UK, passed by a parliament that, for all its many flaws, boasts a higher calibre of talent and subjects them to more intense scrutiny than is seen at Holyrood.
Until that reform happens, we will continue to see a substandard parliament churn out substandard legislation with substandard scrutiny. As unwelcome as this kind of talk is in Scottish politics, where ever-greater devolution is close to a religion, the failure to confront these problems only gives fuel to those of us who have grown skeptical of the whole devolution project. It allows us to say, without fear of contradiction, that if there was no Scottish parliament there would be no hate crime act.
This article was originally published on The Spectator’s UK website.
