Conservative MSP Murdo Fraser has threatened Police Scotland with legal action after the force logged one of his tweets as a “hate incident” even though no law had been broken.

The veteran politician said he believed the service’s action was unlawful.

The row comes ahead of Scotland's new hate crime law taking effect on April 1. The legislation consolidates some existing laws and creates a new offence of stirring up hatred against protected characteristics, including age, disability, religion, sexual orientation, and transgender identity.

Police Scotland has promised that it will investigate every hate crime complaint reported. Even if the investigation does not result in charges being brought, the report will result in a hate incident being recorded. 

The force's own national guidance defines that as "any incident which is perceived by the victim or any other person, to be motivated (wholly or partly) by malice and ill-will towards a social group but which does not constitute a criminal offence (non-crime incident)."

READ MORE: Ministers under pressure to delay hate crime law start date

The row stems back to November when Mr Fraser shared a column written by Susan Dalgety for The Scotsman, which claimed the SNP Government’s non-binary equality action plan would lead to children being “damaged by this cult”.

Commenting on the shared post, Mr Fraser said: “Choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat. I’m not sure governments should be spending time on action plans for either.”

A member of the public then reported the post to Police Scotland, claiming it constituted hatred against non-binary or transgender persons.

In his letter to Police Scotland’s Professional Standards Department, Mr Fraser said that while the officer who followed up on the complaint determined no crime had been committed he later discovered that it had been recorded as a "hate incident.”

The MSP said he discovered this as the same individual who complained to police also lodged a complaint with the Ethical Standards Commissioner of the Scottish Parliament, informing them that they had reported the matter to the police who had recorded it as a hate incident and had provided them with a crime reference number.

Mr Fraser first wrote to the Chief Constable about the incident on 21 December, requesting a meeting to discuss the matter further.

The force replied to him two and a half months later on 11 March, with the Local Area Commander for Perth and Kinross confirming that the incident would remain on police records “in line with national guidance.”

READ MORE: Police Scotland: the growing problem of what crime is

The MSP said the force was in breach of the Human Rights Act by acting in a way which was incompatible with his European Convention on Human Rights, specifically the right to a private and family life, and the right to freedom of expression.

Mr Fraser, who is being supported by the Free Speech Union, also suggested the force had breached the Data Protection Act and the Equality Act.

He also questioned Police Scotland’s Hate Crime National Guidance, saying it was unlawful “because it makes no allowance for Police Scotland to exercise common-sense discretion in determining whether there was a lawful justification to interfere with the alleged perpetrator’s right to freedom of expression.”

The MSP pointed to a recent court case south of the border which held that similar guidance constituted a disproportionate and unlawful interference with the right to freedom of expression.

That now means forces in England and Wales do not record anything "trivial, malicious or irrational."

Mr Fraser said: “Given the substantial similarities between the hate incident recording regimes in the two jurisdictions, there is no reason to suppose that a Scottish court would reach a substantially different decision when presented with the substantially similar facts of a baseless complaint made to the police.”

The MSP said the force had “adopted a cavalier and disrespectful attitude towards me and my rights to freedom of expression and privacy, and the right to be informed of false and damaging information held on police records.”

He added: “In doing so, the police acted on the basis of a policy that is disproportionate, discriminatory, intrusive, irrational and otherwise unlawful."

READ MORE: Hate Crime Act might yet be a success if we focus on what it means


In a statement, Mr Fraser said: “This is Police Scotland attacking free speech – but it is more sinister than that. My tweet wasn’t pointing a finger at an individual – it was critical of a Scottish Government policy.


“If police are now treating criticism of SNP policy as hate incidents, that is a really serious issue as it shows how Police Scotland has been captured by the SNP policy agenda.

“Police in England and Wales have torn up their policy on recording non-criminal hate incidents, but Police Scotland have not done that.

“It is also grossly discourteous of the Chief Constable not to have responded personally to my letter in December.

“When the new hate crime legislation is enforced from April 1, police are going to be inundated with complaints – and many of them will be as baseless as the one directed at me.

“Police Scotland have said that they will investigate every complaint they receive – but at the same time they admit they don’t have the resources to investigate minor crime and are severely overstretched.

"Potentially there will be thousands of ‘hate incidents’ unlawfully recorded if Police Scotland don’t change their policy.”

A spokesman for Police Scotland said: “On Monday, November 20, 2023, officers received a report of an offensive tweet. Inquiries were carried out and no criminality was established. The incident was recorded as a non-crime hate incident. Hate incidents are not recorded against alleged perpetrators.”