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When will they learn? The illiberal and unworkable Hate Crime Bill is another assault of freedom of speech from a Scottish Government that has a tin ear for civil liberty.

When the Scottish Police, the Catholic Church, the Law Society of Scotland get together to condemn the Scottish government’s Hate Crime Bill for endangering freedom of speech, you’d think that ministers might be tempted to listen. I can’t off-hand think of any issue that has united policemen, lawyers and churchmen in quite this way before – at least not in the modern age.

The Hate Crime Bill, currently in its committee state in Holyrood, seeks to make illegal speech that is “likely to stir up hatred” against individuals or groups. Any “threatening or abusive” behaviour can constitute a crime carrying a seven year prison sentence. Even insulting someone can be criminal if it refers to their race.

And the onus is not on the complainant to prove intent. It could be enough just to establish that the said remark was “LIKELY to stir up hatred” and that the perpetrator probably knew this. It hardly needs to be said that this would LIKELY criminalise debate on any controversial subject, such as the transgender issue.

Misgendering someone, insisting that sex is real or arguing that transwomen are not really women is LIKELY to be interpreted as “abusive or threatening” and “stirring up hatred” and there will be no shortage of thin-skinned keyboard warriors reporting “gender critical” writers like JK Rowling to the police.

The Catholic Church rightly sees that its views on sex and gender will put it in the “stirring up” frame. Just open the Bible at random and you can see material that some people will find offensive, from Jews to homosexuals. Quoting the Bible injudiciously could easily land a minister in clink.

The police are not entirely relaxed about having this dubious responsibility thrust upon them by legislators.  The General Secretary of the Scottish Police Federation, Calum Steele, made this clear in no uncertain terms to the Justice Committee hearings on the Hate Crime Bill. He said it put the police in the invidious position of “policing what people think or feel as well as the criminalisation of what is said in private”.

The police have enough on their plate without dealing with insulting or abusive behaviour in private or public. I mean, have MSPs never wandered down Sauchiehall Street or the Byers Road on a Saturday night? Do they lead such sheltered lives?

The Law Society of Scotland agreed last week that the bill presents a “significant threat to freedom of expression” by criminalising “abusive or insulting behaviour”. These woolly terms should have no place in the criminal law. If people feel insulted or abused they can sue for defamation in the civil courts.

Humza Yousaf, the Justice Secretary with responsibility for this legislative abortion (and that would probably be enough to have speech police knocking on my door) insist that “the bar will be set high” – whatever that means. He says there is no threat to freedom of speech – or rather there is, but “ free speech is never an unfettered right”. The courts will have to prove that the offensive remarks are “threatening or abusive”.

To which I am inclined to say: away and boil yer heid, minister. Except that I couldn’t. Humour, which is already in a very bad place because of woke guardians on social media, would become impossible. Billy Connolly’s crucifixion sketch?

Needless to say, any portrayal of, or jokes about the Prophet Muhammad would be “stirring up hatred”. The Scottish government is unconsciously implementing the agenda of the ISIS attackers of Charlie Hebdo in 2012. We’ve come a long way since leading politicians marched in defence of the right to be offensive. They’re all too scared now.

But does the Scottish Government never learn from its mistakes? It was responsible for the 2012 Offensive Behaviour at Football Act. This criminalised football supporters for singing rebel songs and exercising their natural right to abuse to the other lot. A sheriff, when asked to adjudicate on a football supporters language, called the OBFA “mince”. It was eventually repealed.

Then we had the Named Person’s Act, which was supposed to appoint a guardian for every child in Scotland to ensure that they were consulted when their parents repainted their bedroom. It also threw teachers and health visitors willy nilly into the front line of child abuse prevention, about which role they were not entirely relaxed. Eventually it collapsed after it fell foul of the European Convention on Human Rights.

The ECHR will no doubt also play a role on the eventual repeal of the Hate Crime Bill should it ever have the misfortune to reach the statute books. Freedom of speech is a cardinal principle and this very much includes the right to speak offensively or abusively to people.

The Convention certainly does not recognise any human right to be protected from language which is “likely to stir up hatred” – and if it did most literature, from Ernest Hemmingway to Hugh MacDiarmid would be outlawed. Indeed, expect Unionists to start claiming that the SNP is itself an organisation dedicated to the stirring up of hatred in the interest of separating Scotland from the Union.

It’s not as if we don’t have plenty of hate crime laws already. It is already illegal to threaten people or incite violence – or does Humza Yousaf not know this? You can be prosecuted for teaching your dog to give a Nazi salute. There are thousands of prosecutions every year.

A whole industry has grown up around the police recording of “hate incidents” – defined as anything that any individual or group believes is prejudiced or hostile. Thousands of these are being recorded every year. They are not actually criminal but they might as well be, because they carry a penalty against which there is no defence.

These non-crimes are likely to show up in any enhanced disclosure search. So if you’ve been accused of misgendering someone, and you apply for a job as a primary school teacher, don’t be surprised if you don’t get it.

The Scottish government spends too much time listening to lobby groups, like Engender and Trans Alliance, which it also funds. They get in under the wire and capture civil servants and policy – as the Edinburgh academic collective, Murray Blackburn Mackenzie, have elucidated over gender reform.

MSPs of all parties must call time on this lurch into illiberalism. The Bill risks trampling over rights and freedoms that Scots cherish very dearly, as products of the Scottish Enlightenment. The SNP of all parties should understand this.

We mustn’t allow right-thinking politicians to take us back to an age when people had to be fearful of speaking their minds – even in private – in case it got to the ears of the witch finders. There is no way of amending this unnecessary and illiberal bill – it needs to be sent to the knackers yard forthwith.

A version of this appeared in the Herald.

About @iainmacwhirter

I'm a columnist for the Herald. Author of "Road to Referendum" and "Disunited Kingdom". Was a BBC TV and radio presenter for 25 years - "Westminster Live" and "Holyrood Live" mainly. Spent time as columnist for The Observer, Guardian, New Statesman. Former Rector of Edinburgh University. Live in Edinburgh and spend a lot of time in the French Pyrenees. Will that do?

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