ON THE day the Hate Crime legislation came into force, I was on Ben A’an. It was Easter Monday, so it was busier than usual, the steep paths to the summit thronged with committed trekkers, once-a-year jaunters, dog walkers, teenage boys, and dads bearing babies in backpacks.

The mood was friendly and accommodating, as slower walkers stood aside to allow faster ones to pass, and faster ones stood aside to allow slower ones to catch up.

At the top, everyone took turns on the sharp peak, and agreed the views over Loch Katrine were stunning. As we tucked into our sandwiches, it was good to be reminded that different groups of people can occupy the same small patch of land without sullying the air around them.

Sadly, it was short-lived. On the car journey home, I logged on to Twitter and was assailed by strangers spewing bile in the name of unfettered discourse. “Moron,” they yelled, and “idiot”, as they railed against the restrictions they (wrongly) claimed the new law would place on their right to be obnoxious.

As Voltaire understood, that *is* a right worth defending (although I doubt he ever called anyone a “****wit” to prove his point).

It was odd to see a coffin, complete with crucifix, being paraded in front of Holyrood to symbolise the death of free speech when, far from flatlining, obnoxiousness is so clearly thriving.





Odder still that it should be borne aloft by the Scottish Family Party whose stated remit is to “to fill the void left behind by the current parties and their abandoning of Judeo-Christian-inspired values of traditional Western civilisation”.

Nothing says “Christian values” quite like reducing the freshly-risen Messiah to a cheap prop. One member of the Scottish Family Party, Niall Fraser, is an evangelist for toxicity, who called on supporters to brick up the Sandyford sexual health clinic. “Go hate one another as I have hated you,” as I’m pretty sure Jesus never preached.

JK complaints

Elsewhere, JK Rowling was being hailed as a secular saviour for baiting her critics with a provocative thread, then saying “I told you so” when thousands of vexatious complaints were made against her.

She insists she was testing the law and standing up for women less powerful than herself, who might find themselves wrongly targeted and lack the resources to fight back.

But her tweets, which risked conflating a handful of sex offenders with the entire trans community, felt gratuitously cruel, and its own social ill. It doesn’t seem to occur to Rowling and her fellow campaigners that they might be fostering the climate in which the new Act is likely to be abused rather than merely exposing it.

Or that their lawful actions might encourage unlawful ones, such as racist graffiti and the targeting of MSPs’ offices.

The Herald:

Rowling has done many good things in her life, and, even if she hadn’t, she would be entitled to campaign against what she perceives as the pernicious nature of “trans ideology”.

But I find it disappointing that – at a time of global strife – a woman with such a mighty platform would use it to stoke division rather than to foster solidarity.

Or, to put it another way: while I don’t believe anyone should be locked up for “misgendering”, neither do I understand why you’d repeatedly do so just to demonstrate you were within your rights.


THE argument that noxious behaviour is justified because the “other side” is as bad or worse is a recipe for neverending escalation.

Meanwhile, those women who do not engage because they don’t see trans women as a threat, or because they think the debate is too polarised, or because they don’t fancy allying themselves with the likes of Alistair McConnachie, a holocaust denier,  who has turned up at previous rallies, are being written off as cowards, often by men who spent half their lives dabbling in misogyny, but have now reinvented themselves as feminist campaigners. The mess the Hate Crime Act now finds itself in is an increasingly common feature of Scottish life, caused by a combination of bad faith actors and hapless politicians.




Most legal experts seem comfortable with the legislation, which creates a new offence of communicating material, or behaving in a manner “that a reasonable person would consider to be threatening or abusive, with the intention of stirring up hatred on the grounds of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics”.

These additional provisions add to longstanding offences relating to stirring up racial hatred, which have been in place across the UK since 1986. The Bill was backed by most SNP and Labour MSPs, and all five of the LibDems, though most Scottish Conservatives MSPs voted against.

Three years on, however, vested interests have been spreading misinformation which has led people to believe the threshold for criminality is much lower than it is. Journalists have played their part. Guardian columnist Simon Jenkins, for example, wrote that under the new law the prosecution need only prove a comment was “likely” rather than “intended to” offend.

In fact, this is only true with regards to race (and, again, that has been the case across the UK since 1986) .

Longstanding law

THERE has also been a controversy over the “reasonable person” test, as if it were some new-fangled concept as opposed to a longstanding feature of Scottish law.

Overall, the debate over the Hate Crime Act has the vibes of the Stewart Lee sketch in which he riffs on something a taxi driver once told him: “These days you get arrested and thrown in jail if you say you’re English.”

Those who claim the Act is unworkable are doing their best to ensure it becomes a self-fulfilling prophecy.

In this, they are being aided by a government that seems incapable of effective communication either with the police, whose responsibility it is to deliver on it, or the public it is supposed to serve.

As academic lawyer Michael Foran has pointed out, a failure to properly consult and an emphasis on “hurt feelings” over “freedom of expression” led some gender-critical women to fear the legislation would be weaponised against them.

This was not helped by the exclusion of women from the legislation (because the government is consulting on a standalone offence of misogyny) and the Minister for Victims and Community Safety Siobhian Brown’s failure to confirm, when questioned, that “misgendering” alone would not meet the threshold for criminality (though the law itself is clear).

On top of all that came the revelation that unlike English forces, which revised their practices after a landmark court case in 2022, Police Scotland were still recording all non-crime hate incidents – i.e. incidents perceived by the complainant as motivated by hate, but which do not result in a prosecution.

Police Scotland appears to be revising its own policy in a suboptimal, ad hoc fashion as a result of the backlash.

Humza Yousaf could and should have acted more assertively to ensure the limitations of the Act were better understood, and to head vexatious complaints off at the pass.


FM Humza Yousaf

FM Humza Yousaf


But society is just as poorly served by those who seek to dismiss the consequence of hate – lawful or otherwise – as nothing more than “hurt feelings”, or who amplify it in pursuit of their own agenda.

Unchecked anger

WHILE the right to offend must be preserved, gratuitous cruelty diminishes us as individuals and as a society. The Hate Crime Act has come into force at a time when unchecked anger seems to be on the rise.

Post-pandemic, there have been reports of a tide of incivility: on the streets, at gigs, in theatres, and restaurants.

Online and off, it can feel as if people are taking pride in their own intolerance.

While scrutiny of the new legislation is vital, it should be morally, if not legally, incumbent on its critics to frame their concerns in a manner that doesn’t fuel a spike in the very stirring up offences the legislation was designed to combat.