The National (Scotland)

Scotland might be independen­t by now but for focus on identity politics

Too much time is being spent on virtue signalling and not on the issues that really matter to people

- Joanna Cherry

IREALLY wish I did not have to write about the new Hate Crime and Public Order (Scotland) Act again this week. Instead, I wish the post-2014 leadership of the SNP had spent half as much time on advancing the cause of independen­ce as they have on identity politics.

Had they done so, Scotland might already be an independen­t country or at the very least considerab­ly further down the road to independen­ce. I sense a bewilderme­nt on the part of many SNP members at the focus of our Holyrood parliament­arians. And, on the doorsteps, I hear real anger from constituen­ts who think too much time is spent on virtue signalling and not enough on the issues they care most about, such as health, transport, housing, and education.

In her podcast this week Lesley Riddoch said she sensed that a lot of the annoyance with the Hate Crime Act was because it’s not what people want to see the Scottish Parliament spending its time on.

I think she is right about that, particular­ly given our law already contained robust protection­s against crimes aggravated by hate and against the stirring up of racial hatred, a crime for which there is a well-documented need.

However, there are people, including an army of unpaid feminist volunteers, who have spent a lot of time looking at the detail of the new act and the motivation­s behind it. On their behalf, and as someone who is trained to understand the law, I want to set the record straight on a few issues.

Let’s start by exploding a few myths. Scotland is not disappeari­ng under a tsunami of hate. A graph from the Crown Office and Procurator Fiscal Service’s latest report on trends in hate crime reported in Scotland under the law which predated the new act shows an increase in the total number of charges reported to the Crown by the police in respect of sexual orientatio­n and disability.

It shows a downward trend in those reported in respect of race, religion, and transgende­r identity. Only 55 charges with an aggravatio­n of prejudice towards transgende­r identity were reported in 2022-23, a 36% drop from the 86 charges reported the year before.

That’s good news, as is the significan­t drop in racial hate crimes. I hope this puts things in perspectiv­e.

Scotland is not a hate-filled country. It IS a very disputatio­us country. Hate and disputatio­usness are not the same thing. Just think how annoyed Yessers were when our enthusiast­ic support for independen­ce during the 2014 referendum campaign was wrongly portrayed as hateful towards Unionists or English people.

That is pretty much how many long-standing feminist and lesbian activists feel when our legitimate concerns about the implicatio­ns of gender identity ideology for women’s privacy, dignity and safety are wrongly portrayed as hateful towards anyone who identifies as trans.

Some people believe that human beings can change sex. Others, including me, do not. Science and biology are on our side. However, we do not want to prevent the expression of the belief that sex is mutable; we just don’t want our belief that sex is immutable to be silenced.

In this, the law is generally on our side as reflected in important recent judgements which have establishe­d that gender-critical beliefs are “worthy of respect in a democratic society”.

However, aspects of the new Hate Crime Act risk underminin­g the protection­s we enjoy for freedom of belief and free speech under the Equality Act and the Human Rights

Act. That need not have been the case if the Scottish Parliament had followed the recommenda­tions of the judge who carried out the independen­t report which preceded the act.

He wanted the act to include a defence that said there would be no prohibitio­n or restrictio­n of discussion, criticism or expression­s of antipathy, dislike, ridicule, insult, or abuse of the belief that sex is not binary.

THE Scottish Parliament did not follow his recommenda­tions in this respect (although it did for religious beliefs) and attempts to amend the bill to do so were strongly opposed by lobby groups who adhere to gender identity ideology.

Next, let me explode another myth. England does not have identical legislatio­n to the new Scottish act. The legislatio­n in England that deals with stirring up offences covers race, religion, and sexual orientatio­n.

It does not cover transgende­r identity. It deals with behaviour which is threatenin­g, not behaviour which is threatenin­g OR abusive, and it has properly tailored defences of the sort recommende­d by Lord Bracadale.

When the English Law Commission looked at this matter

recently, they recommende­d that if an offence of stirring up hatred based on transgende­r identity was to be introduced in England it must be accompanie­d by the sort of tailored defence Lord Bracadale recommende­d.

The more widely drawn offence in Scotland and the absence of the tailored defence has led to legitimate fears that the law would be used to silence gender-critical women.

Anyone who is paying attention to the debate on social media knows that it is nonsense to say those fears were unfounded. Furthermor­e, on Monday morning a government minister suggested that misgenderi­ng might be a police matter so it is undoubtedl­y the case that JK Rowling’s interventi­on and the statement by police that she would not be charged were significan­t.

However, I suspect that if an ordinary woman had tweeted in the same terms as JK Rowling, she might not have got off so lightly.

In 2021, I returned briefly to my practice at the bar to defend a woman who had been charged under laws then in force in respect of tweets which were not dissimilar to JK Rowling’s. If anything, they were a bit tamer.

However, she was not a rich, internatio­nally respected writer and philanthro­pist; she was just an ordinary working-class woman.

The charges were dropped after detailed legal representa­tions were made that they breached her rights to freedom of belief and freedom of speech. However, not before she had been put through the ordeal of attending a police station and court on several occasions and having her face all over the newspapers.

GOING forward, the decision not to proceed against Jo Rowling has set a standard that will need to be followed for everyone because of the principle of equality before the law.

That principle has further ramificati­ons for what has occurred this week. Police Scotland say that they received more than 3000 complaints in the first 48 hours of the act being brought into force. Some of those complaints were against Humza Yousaf for his “white” speech in Parliament a few years ago. While it’s a historic speech it is still widely published on the internet which means that it could be caught by the new law. I think the police’s swift decision that the speech was not criminal was correct.

However, I am troubled by Police Scotland’s announceme­nt that they will not be logging “non-crime hate incidents” in respect of the multiple complaints made against Humza and JK Rowling.

Their current policy is to record a non-crime hate incident where a hate crime allegation does not reach the threshold of criminalit­y. Many have urged that they change this policy not least because of a court decision in England finding a similar policy there unlawful.

However, Police Scotland have not changed their published policy. Now it seems they are revising it on the hoof to avoid the embarrassm­ent of recording non-crime hate incidents against an internatio­nally renowned author and philanthro­pist and the First Minister of Scotland.

This really isn’t good enough and it calls into question the entire applicatio­n of the policy to date. The policy should be applied equally to everyone or to no one at all. Police Scotland are already facing a legal challenge from a Tory MSP in relation to the recording of a non-crime hate incident against him. They could now also face very serious allegation­s of political bias.

They need to wipe their existing database of non-crime hate incidents and to carry out a proper review of their policy or else they could be facing a torrent of legal claims.

Finally, I think it is important that the blame for this flawed legislatio­n does not rest just with the Scottish Government and SNP and Green MSPs. This bill had some enthusiast­ic cheerleade­rs in the Scottish Labour party and the LibDems who now seem to have gone to ground. And as for the Tories, it’s a bit rich for Rishi Sunak to attack the new Scottish legislatio­n given the many attacks on free speech that have taken place in England under his party’s watch. Judging by his government’s recent rhetoric, he has a few more planned for those who dare to disagree with his policies. He has also renewed his threats to leave the ECHR, the very underpinni­ng of our rights to freedom of belief and freedom of speech.

Across the UK – including Scotland – we are seeing a growing tendency to weaponise our laws and police to silence critics of government policy. This is most emphatical­ly not what was envisaged for Scotland’s future in the heady days of 2014, and it needs to stop.

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 ?? ?? A member of the public walks past a billboard in Glasgow encouragin­g people to report hate crimes
A member of the public walks past a billboard in Glasgow encouragin­g people to report hate crimes

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