Do the Hate Bill critics really care about reality of hate?

Sunday National, 9th August 2020.

It remains one of the saddest and most infuriating things a student has ever said to me. In the spring of 2018, anonymous letters began to circulate across the UK. Copies were sent to prominent public figures, to places of workshop and to communities, and were quickly picked up in the press and on social media. It designated Tuesday April 3rd as “Punish a Muslim Day.”

This scabrous tract promised “rewards based on actions taken” against the Muslim community, with a points-based system reflecting an escalating catalogue of abuse and violence. 10 points were awarded for “verbally abusing a Muslim,” 25 for pulling “the headscarf off a Muslim woman.” Firebombing mosques, torture, homicide – the unsigned letter was as menacing as it was repulsive.

I teach a diverse cohort of young folk at Glasgow Caledonian University, from all over Scotland, from a range of different religious and ethnic backgrounds. The phrase “Andrew, I’m sorry I won’t be able to come to the class on Tuesday” is usually followed by news of a dentist’s appointment, or a family funeral. This time the explanation was different. “I just don’t feel safe to coming into town that day,” she said. “My mum doesn’t want me to come in.” I was incandescent.

What the hell do you say to a young person in these circumstances? Just 18 or 19 years of age, in contemporary Scotland, and some religious bigot, some leering ghoul, had made these students – my students – afraid to walk through their city and attend their classes, for fear that someone would take up the challenge and throw sulphuric acid in their faces, or rip the scarves from their heads? What the hell can you say?

I think it was the apologetic, matter of fact way the student explained the reasons for her absence which struck me hardest. Call it a failure of social imagination on my part, certainly a failure of reflection. I’d seen news reports about the letter – but I hadn’t thought to see its horrible consequences written on the anxious face of a bright young woman I was more used to seeing in the lecture hall and the seminar room. Colleagues were approached by a number of students with similar stories.

To be able to walk the streets without fear might strike you as the least we can ask for in terms of human security. Still a teenager, this young woman already took for granted the fact this would not always been the case – at least for her and for people like her. It shone a hard clear light, for me, on how different our social lives can be.

If you want any insight into why hate crime is so socially consequential, and why we need the criminal law to reckon with it – find it here. The consequences are physical and emotional, social and economic. If you are racially abused on a routine basis at work, who could blame you for deciding to pack the gig in? If churches or synagogues are trashed or graffitied with hateful slogans, it is message to every worshipper. If a same-sex couple are abused in public because they have the audacity to hold hands, they are never the only victims of the treatment meted out to them. “To borrow a phrase from the late Lord Rodger, gay people who hope to share “the small tokens and gestures of affection which are taken for granted between men and women” are put on notice that it may not be tolerated. Disabled people, trans people – you can go on, and on. The streets can be mean. Or mean for you, at least.

We rightly worry about chilling effects on free expression, but routine intimidation and banal harassment create their own social deep-freeze, as people censor themselves, adopt avoidance strategies, and live their lives constantly exposed to how they’re perceived, and the potential prejudices of those perceiving them. You may not have experienced this in your life – but talk to people who are consistently on the receiving end of this kind of social treatment and you might not talk about “hate crime” in such a sneering and condescending way, or present the issue as a self-indulgent cartoonish enterprise in “woke” identity politics. Should I have just told my student not to be “snowflake” and insist she come to class notwithstanding her fears? I couldn’t have looked at myself in the mirror again. I’d melt with shame.

Conspicuous by its absence in the first wave of criticism Holyrood’s Hate Crime Bill has received is any morally serious reflection on why hate crime might matter, and might merit being talked about in a careful, thoughtful way. Scant months on from widespread coverage of the Black Lives Matter campaign, the Scottish media has been battered by screamer headlines and opinion columns about the Bill.

Many make good and important points about its implications for free expression, arguing the detail in the Bill should be tightened up to forestall any unforeseen consequences and mischievous prosecutions. Many more crudely exaggerate or simply misstate what the Bill will do, in lazy diatribes about Holyrood’s “bad drafting”. Few of the pieces seem terribly interested in the lived realities of racism, religious bigotry and homophobia which continue to structure how thousands of Scots experience life in this country.

Recognising this lived reality cannot be the end of the story, and cannot answer the difficult questions facing our parliamentarians when they are invited to create new and potentially wide-ranging criminal offences of stirring up hatred. No new criminal statute should go through on the nod. For myself, I have consistently argued this Bill needs to be evaluated extremely carefully. As Lord Bracadale reflected in his independent review of the law, “the potential risk to freedom of expression from the introduction of stirring up hatred offences is well recognised.” It is positive that MSPs are already stress-testing the Bill against this fundamental right.

This week, the Faculty of Advocates have joined the Law Society of Scotland in teasing out some of this detail. The Faculty “is not opposed to and indeed supports the principles behind the Bill,” but has concerns “regarding the potential impact of certain sections of the Bill on freedom of expression” and the potential for a “chilling effect on legitimate, if controversial, debate and the performing arts.” It is a constructive submission with much to commend it – but once it had been through the media wringer – it had been transformed into a “demolition” of the whole Bill. Its “gotcha” politics and it kills nuance stone dead.

There is scope, in my submission, for the legislation to be improved to allay well-founded and exaggerated fears about its impact. I make two key recommendations. As the Bill stands, an individual could be prosecuted if their behaviour is “likely to stir up hatred” against a group, even if it cannot be proven they intended to do so.

Firstly, I argue that stirring up should be a crime of intention only. Prosecutors should have to prove what lawyers call mens rea. Amending the Bill in this small way would go a very long way to addressing concerns of fair-minded critics. My second suggestion is that the defence of “reasonableness” in the Bill should be tightened up, with clearer guidance to courts on factors to be taken into account in assessing whether behaviour is reasonable – including its literary, artistic or journalistic context. There’s also a powerful argument for additional free speech provisions, beyond sexuality and religion.

This may be a devastating admission for a newspaper columnist to make, but in my bones – I’m not a profoundly cynical person. Every observer of politics ought to try not to be a conspicuous fool, or to underestimate the human imagination’s capacity for perfidy, stupidity and malevolence. Bills will be passed and Acts repealed for bad reasons and by dint of political calculations. This Bill was destined to be controversial. It couldn’t be otherwise. It shouldn’t be otherwise.

I lamented on social media this week that we have such an exaggerated, headline-grabbing, dough ball approach in Scotland to discussing so many important issues of public policy, you almost feel then scope for real scrutiny slips away in the chase for the cheap headline. Thinking about what these issues clearly meant to my undergraduate student in 2018, seeing the impact it had on their lives, there is something especially dispiriting about how rapidly the Hate Crime Bill has become just more grist to the Scottish political mill.

There’s an old line that you can only really have a proper argument amongst friends. Opponents can be relied on to try all the old propagandists’ tricks on you. They’ll twist your words, go ad hominem, deploy logical fallacies, take a scalpel to the evidence, ignore inconvenient facts, and make up more convenient ones in the rush to win the argument. This is just one of the many reasons why the idea of entering politics makes me green. When you argue with friends, by contrast, you know you’re arguing in good faith, testing the merits, working through a shared problem together. A modest proposal: perhaps we could give good faith a try some time.

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