Starmer hasn't criticised Scotland's hate crime act - beware it creeping into England, says Toby Young

protest against Scoland hate crime bill

The General Secretary of the Free Speech Union warn against complacency

Toby Young

By Toby Young

Published: 21/04/2024

- 13:29

The General Secretary of the Free Speech Union warn against complacency

Many free speech advocates have been looking on in horror at the new draconian restrictions on free speech introduced in Scotland at the beginning of this month. We confidently tell ourselves that nothing as authoritarian as the Hate Crime and Public Order (Scotland) Act would ever be introduced south of the border.

But I would caution against complacency. Pointedly, Sir Keir Starmer hasn’t condemned the Scottish Act. On the contrary, Annaliese Dodds, the Shadow Secretary of State for Women and Equalities, told the Labour Party conference last year that a Labour government would “tackle the rising tide of hate, with stronger laws so those who carry out anti-LGBT+ hate crime get the tougher sentences they deserve”.

She went on: “We will deliver where the Conservatives have failed by bringing in a full, no-loopholes, trans-inclusive ban on conversion therapy.”

Such a ban is likely to criminalise parents urging their gender confused children not to have irreversible medical treatment that can leave them unable to have children or achieve orgasm, as well as health professionals who favour the ‘watchful waiting’ approach to treating troubled adolescents rather than the ‘affirmative care’ approach recently condemned in the Cass Report.

But what about the prospect of a Hate Crime and Public Order (England and Wales) Bill? Could it happen here?

Should Sir Keir be tempted, there’s an oven ready bill that has been drawn up by the Law Commission of England and Wales. Following a consultation in 2020, the Commission recommended that an almost identical bill to the Scottish Hate Crime Act be passed in England and Wales, only it would be slightly worse because the Commission would like it to include a new Harmful Communications Offence, punishable by up to two years in jail, that would criminalise communications “likely to cause harm to a likely audience” where harm is defined as “psychological harm amounting to at least serious distress”.

It’s not hard to imagine how that offence would be weaponised by social justice warriors: “Officer, when that man disagreed with me he hurt my feelings. Can you arrest him for committing a harmful communications offence?”

And, of course, if the police in England and Wales investigate a report of a ‘hate crime’ and conclude no crime has been committed, they already record it as a ‘non-crime hate incident’.

The Free Speech Union estimates that roughly a quarter of a million of these have been recorded since the publication of the Hate Crime Operational Guidance by the College of Policing in 2014, which is an average of more than 65 a day. That may explain why in the past three years police forces have failed to solve a single burglary in around half of all neighbourhoods in England and Wales.

But even if a Labour Government doesn't enlarge the scope of the ‘stirring up’ offences in the Public Order Act 1986 to include ‘stirring up hatred’ against ‘transgender identity’ – a feature of the Scottish legislation – that’s not a reason to think what’s happening north of the border couldn’t happen here. Why? Because, to a great extent, the Hate Crime and Public Order (Scotland) Act just brought Scottish hate crime law into line with our laws.

For instance, it made it an offence to stir up hatred against people based on their religion or their sexual orientation, which is already against the law in England and Wales.

The Public Order Act was amended by the Westminster government to enlarge the scope of the stirring up offences to include religion in 2006 and sexual orientation in 2008. Those changes to the law didn’t apply in Scotland because public order is a devolved area of legislation.

The ever growing list of ‘protected’ characteristics – nine are included in the Equality Act 2010 – means it’s inevitable that the characteristics that are within scope of the ‘stirring up’ offences will continue to multiply, both here and in Scotland – and, incidentally, in Northern Ireland, where the Justice Department has developed plans for a Hate Crime and Public Order (Northern Ireland) Bill which, now that Stormont is back up and running, will be brought forward later this year.

So by all means condemn the almost comically authoritarian Scottish Hate Crime Act. But if you think something similar won’t be introduced in England, Wales and Northern Ireland, you’re gravely mistaken.

Toby Young is the General Secretary of the Free Speech Union. You can join for as little as £29.95 a year

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