This article appears as part of the Unspun: Scottish Politics newsletter.

On Monday, Community Safety Minister Siobhian Brown launched Hate Hurts, a new marketing campaign ahead of the Hate Crime and Public Order (Scotland) taking effect next month.

She said the adverts to be displayed on billboards and shared on social media and TV would explain “what a hate crime is”.

Do they? I’m not sure they do. And that could be a problem. 

The law, which consolidated a number of different pieces of hate crime legislation, creates a new criminal offence of stirring up hatred against protected characteristics including age, disability, religion, sexual orientation and gender identity.

During the Bill’s torturous passage through parliament, Adam Tomkins, the legal academic who – during his time as a Tory MSP – chaired Holyrood’s Justice Committee said that what mattered was not so much the words being written into law by the parliament, but on the “training that we give to our police officers and prosecutors, and on the way that we explain the legislation to the public.”

He continued: "In particular, it must be widely understood that, just because one is offended, hurt or upset by something that someone has said about an aspect of one’s identity, that does not mean that a hate crime has been committed.”

Instead, the public awareness campaign is ill-defined and subjective and could lead to lots of complaints to police. 

It’s not clear how many reports the service will have to deal with when the new law kicks in, but groups like the researchers at Murray Blackburn Mackenzie (MBM) have warned of a “potential deluge”.

The Herald:
Not all of the crimes, maybe most of them, will reach what we were told would be a high threshold for prosecution or conviction.

But it will be up to our under-resourced, short-staffed police service to triage these complaints.

And we’re still in the dark about how they’re going to do that. The training provided to officers has not been widely released. 

It’s also not just about those complaints that do breach the threshold. Officers will have to investigate every report, even if lawful.

Will these non-crime incidents be recorded?

Some of the most vocal concerns about this new law come from gender-critical campaigners, those who say sex is biological.

Last year, I reported on an LGBT+ Allies toolkit adopted by the police, which requires officers to commit to the idea of gender identity, that a trans woman is literally a woman, as an uncontested truth.

It included links to a video that says that misgendering – referring to a sex that does not reflect the person’s gender identity – can cause “real psychological trauma”.

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Last week, Northumbria Police dismissed a complaint against JK Rowling after she said India Willoughby, a transgender TV personality, was male. Supporters have now submitted complaints against the Harry Potter author, who lives in Edinburgh, to Police Scotland.

Could she, from Easter Monday, be prosecuted under the hate crime law?

Does the force’s training, the guidance, say this is something to be reported to the Crown Office and Procurator Fiscal Service?

Alarmingly, we don’t know. We’ll find out soon, I suppose.

The fact that there’s a lot we don’t know, comes down to the government.

In a letter sent to Holyrood’s Justice Committee over the weekend, MBM pointed out that Humza Yousaf – who was Justice Minister at the time – said he would “continue to engage with stakeholders” after the Bill had passed in 2021.

He said ministers wanted to “give them some reassurance in the explanatory notes that sit alongside the bill”.

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He added: “That detail is not in the bill but, as the name suggests, those notes are there to explain how certain provisions in the bill work.

“We might need to insert some more specific examples – perhaps some of the examples that Lucy Hunter Blackburn mentions about the belief of some people that sex is immutable and that people cannot transition from male to female and vice versa.

“If stakeholders would like some examples in the explanatory notes, I am keen to discuss that with them and with the Equality Network, the Scottish Trans Alliance and others to see whether that might be a common-ground compromise”.

That did not happen.