18.04.2024
Further criminalising speech
Tory opposition to the Scottish ‘hate crime’ act is about protecting their ‘traditional right’ to stir up hatred. Once it was Jews and Huguenots. Now it is illegal migrants, trans activists and marchers who oppose genocide in Gaza. But, asks Mike Macnair, what the hell is the SWP doing with its call for prosecutions?
From, April 1, All Fools Day, the Scottish government’s ‘Hate Crime and Public Order (Scotland) Act 2021’ came into effect.1 The three year delay in bringing it into force is purportedly because of the need for the creation of a specialist police unit to handle cases.2 It seems likely that in reality the Scottish government attempted to kick the can down the road until the controversy surrounding it had dissipated.
If so, no such luck. The fact that it criminalises “stirring up hatred” against transgender people, as well as other groups, produced a demonstrative insult to transgender women from the author, JK Rowling, ending with the challenge, “Arrest me”. The wide publicity given to this by the media produced, in turn, 7,000 complaints to the police under the act in the first week - most of them plainly intended to expose the new law as an ass.3 The Tories in the Scots parliament have tabled a vote to repeal it.4
Common ground
Commentary on this development has displayed a curious common ground between the rightwing think tank, Policy Exchange, one of whose senior fellows, Michael Foran, has complained of ‘misunderstandings’ of the act, and Socialist Worker, which instantly responded on April 2 that Rowling should be arrested (only to draw back slightly on April 9).
The act is a short one, and the controversy has been (probably wrongly) mainly about section 4. Sections 1-2 concern the “aggravation” of crimes in general by “prejudice” - defined as being motivated wholly or partly by “malice and ill-will towards a group of persons” on the basis of a list of characteristics similar to the ‘protected characteristics’ under the Equality Act 2010: age, disability, race, colour, nationality (including citizenship), ethnic or national origins, religion or, in the case of a social or cultural group, perceived religious affiliation, sexual orientation, transgender identity, variations in sex characteristics. Where this sort of aggravation is found, the court trying the case is required to take it into account in sentencing and to record it.
The list of protected characteristics, here and elsewhere, strikingly does not include sex: misogyny is not to be an ‘aggravating factor’. Section 12 gives power to the Scottish ministers to amend the act by regulation to add reference to sex. I have not delved far enough into the legislative history to have a clear understanding why this choice has been made.
Section 3 creates a new offence of “racially aggravated harassment”, analogous to the excessively wide harassment liability under section 26 of the Equality Act 2010. The definition of “racially aggravated” is analogous to that of “aggravated” in section 1, so including conduct partly motivated by “malice and ill-will”; the criminalised “conduct” includes speech; and “‘harassment’ of a person includes causing the person alarm or distress”. I flag up all these points because we have repeatedly seen anti-Zionist protests characterised as “harassment” under section 26, and the cases that have occurred of no-platforming of ‘gender-critical feminists’ at universities have also been on this basis. The only real limit on the offence is that “conduct” requires “two or more occasions”, unlike section 26.
Section 4 creates two crimes of “stirring up hatred”. Subsection (1) is specific to ethnic or national issues:
A person commits an offence if
(a) the person
(i) behaves in a manner that a reasonable person would consider to be threatening, abusive or insulting, or
(ii) communicates to another person material that a reasonable person would consider to be threatening, abusive or insulting, and
(b) either
(i) in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins, or
(ii) a reasonable person would consider the behaviour or the communication of the material to be likely to result in hatred being stirred up against such a group.
Subsection 2 is narrower, in that it does not include the word, “insulting”, and that it requires an intention to stir up hatred. But it is also broader, in that it covers all the “protected characteristics” other than ethnic or national ones:
A person commits an offence if
(a) the person
(i) behaves in a manner that a reasonable person would consider to be threatening or abusive, or
(ii) communicates to another person material that a reasonable person would consider to be threatening or abusive, and
(b) in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to a characteristic mentioned in subsection 3.
The remote ancestor of both crimes is the notorious section 5 of the Public Order Act 1936 - “threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned.” ‘Justified’ as directed against Oswald Mosley’s fascists, the bill that led to the Public Order Act was introduced a bit more than a month after the battle of Cable Street in October 1936 (which showed that there could be effective forcible resistance to the Mosleyites’ claim to intimidate east London Jews), and section 5 was very extensively used against the left, trade union pickets, and so on. In one notorious case two gay men kissing at a bus stop were held by the Queen’s Bench Divisional Court to have been properly convicted under section 5.5
The two crimes are also descended from ‘incitement to racial hatred’ under section 6 of the Race Relations Act 1965. It should not be forgotten that the first conviction under this provision was of black activist Michael X in 1967.6 Analogously, when feminists got Canadian obscenity law rewritten along the lines of Andrea Dworkin’s and Catharine MacKinnon’s conception of pornography as a form of male hate speech against women, an early seizure was of the lesbian-feminist sex magazine On our backs.7
Police
Among the various supplementary provisions, section 5 adds police search and seizure powers; section 7 adds a power of the court on conviction to forfeit “any material to which the offence relates”; section 8 imposes individual liability for the acts of groups inter alia on any “individual who is concerned in the management or control of its affairs”. The effect of all these will be to “chill” any sort of speech that might fall foul of the act.
Section 9 provides a weak defence on grounds purporting to protect freedom of expression under article 10 of the European Convention on Human Rights; schedule 1 provides a much stronger ‘common carrier’ defence for Big Tech, like section 230 of the US Communications Decency Act 1996.
As with the legislation to ‘protect freedom of speech’ in universities, the press campaign against the Hate Crime and Public Order (Scotland) Act 2021 is concerned with the protection of Conservative speech, not with the actual struggle for freedom of speech.
It is hardly surprising that the Tories and their press should be opposed to criminalising “stirring up hatred”. It is their party’s stock in trade, and has been since the 1680s, when the Tories campaigned against French Huguenot refugees from the persecution of Louis XIV’s government. They used allegations of homosexuality in the 1690s and early 1700s; mobilised riots to pull down Dissenting Protestant meeting houses in 1710-11 and 1714; went after Jewish immigrants in the 1730s and 1750s; Deists, and French exiles (of a different sort) were targeted again in the 1790s; Irish immigrants and homosexuals in the later 19th century; the Jews again in the early 20th century (including the Daily Hate Mail’s support for Hitler in the 1930s8). In the 1960s it was people of west Indian origin, in the 1970s ‘Pakis’, in the 1980s local governments ‘promoting homosexuality’.
And so on and on, down to today’s dishonest hate campaign against ‘trans activists’ and, in parallel, the extraordinary fraudulent campaign against illegal immigrants, conducted in order to conceal the Tory government’s decision to massively increase legal immigration with a view - explicitly - to undercutting wages.
Given this background, it might be surprising to find Michael Foran of Policy Exchange, previously of the Catholic-politico-legal ‘Common Good Project’, defending the act from ‘misunderstandings’, which he argues are the fault of the public statements of the police and government ministers: in particular, that
If a government minister brought on radio to explain and defend the act can’t unequivocally tell you that misgendering isn’t a crime and says that’s a matter for the police, you can’t blame people for thinking it might be a crime.9
Now Foran’s article is mainly a part of the Tories’ hate campaign against ‘trans activists’ who are alleged to be victimising their opponents. This is the usual problem of bullies with power accusing their nearly-powerless opponents of bullying them.10 But it is still important that he is not arguing for a radical free-speech policy or for taking down the act. The explanation is that - as I have already said - the existing ‘hate crime’ and ‘harassment’ legislation has proved to be a powerful weapon in the hands of the state’s fraudulent ‘Anti-Zionism equals anti-Semitism’ smear campaign. Toryism deploys freedom of speech only in support of Conservative speech, as I have pointed out before in relation to the ‘free speech in universities’ legislation.11
SWP turkeys
It is not surprising, but merely depressing, that Socialist Worker is unwilling to maintain a clear defence of freedom of speech, including freedom of objectionable speech. As I said, the paper’s instant reaction was to see the issue as merely one of trans rights: “You don’t have to think the act is perfect to recognise what Rowling and her Tory supporters are trying to do. They hope to pose as friends of ordinary people, while ramping up anti-trans hatred”. And “Rowling ended her social media posts with a challenge to the Scottish government - ‘arrest me’, she said. She thoroughly deserves for her wishes to be granted.”12
A week later, the paper seems to have partly recognised that such ‘hate speech’ controls are extensively used as a weapon against the left and against the oppressed themselves. The article begins with a defence of the act against the idea that it is a threat to free speech, arguing that
similar laws already exist - such laws haven’t crushed debate. Mark Walters, professor of criminal law at Sussex university, pointed out that ‘stirring up of hatred’ provisions are not new to Scotland: “Stirring up racial hatred has been on the statue [statute] books since 1965. Statistics show that there are very few prosecutions for such offences each year. Between 2006 and 2016, there were just nine cases,” he said.13
Walters is a specialist in ‘hate crime’,14 and the comment as quoted pays no attention to the deployment of ‘harassment’ and related liabilities to shut down debate round Palestine …
The author of the article, or the editor, has had their attention drawn at least slightly to the history:
Infamously the Public Order Act of 1936 - supposedly introduced to deal with Oswald Mosley’s fascist Blackshirts - was only rarely used against fascists. Instead it was used against the left, to attack strikers, anti-war activists and pickets.
And more fundamentally, there’s a problem in trusting the state to wage a fight against oppression. The capitalist state is deeply racist and sexist and shouldn’t be trusted to defend trans people or any other oppressed group. It’s the cops who decide when it’s appropriate to arrest someone.
But the SWP still concludes that the act is to be defended:
That doesn’t mean we should rip up laws - such as limited forms of equality legislation - which have been won by struggle. But we shouldn’t rely on laws from above to provide remedies - it is struggle that wins advances.
In the midst of the ongoing ‘anti-Zionism equals anti-Semitism’ smear campaign and Tory efforts to characterise Palestine protests as ‘hate marches’, this is truly turkeys voting for an early Christmas.
-
Scottish Statutory Instrument 2024, No82. The act is at www.legislation.gov.uk/asp/2021/14/contents.↩︎
-
www.scottishlegal.com/articles/police-scotland-readies-itself-for-activation-of-hate-crime-law.↩︎
-
‘Humza Yousaf faces Tory vote to repeal hate crime law’ The Daily Telegraph April 15.↩︎
-
Masterson v Holden [1986] 1 WLR 1017.↩︎
-
jacobin.com/2017/04/guerrilla-black-power-uk-michael-x-egbuna-mangrove-nine.↩︎
-
www.timesofisrael.com/how-britains-nazi-loving-press-baron-made-the-case-for-hitler.↩︎
-
thecritic.co.uk/what-does-the-scottish-hate-crime-and-public-order-act-really-say.↩︎
-
See ‘Attempt to outlaw justified anger’ Weekly Worker October 20 2016 (weeklyworker.co.uk/worker/1127/attempt-to-outlaw-justified-anger).↩︎
-
‘No-platforming fraud’ Weekly Worker June 24 2021 (weeklyworker.co.uk/worker/1353/no-platforming-fraud); ‘Yet more lies’, April 13 2023 (weeklyworker.co.uk/worker/1438/yet-more-lies); ‘Knavery and folly’, June 8 2023 (weeklyworker.co.uk/worker/1446/knavery-and-folly).↩︎
-
‘JK Rowling and the goblet of hate’ Socialist Worker April 2.↩︎
-
‘Transphobic attacks ramp-up after new Scottish hate crime laws’ Socialist Worker April 9.↩︎