The Scottish legal system doesn’t often make exciting news; neither does Coatbridge, a grey, grim, grimy Glasgow overspill town. But earlier this year both briefly caught the attention of news hounds across the globe.
Townsman and Scottish comedian Duncan Meechan, aka Count Dankula, out to rib his girlfriend, taught her dog to do whatever is the canine equivalent of a Nazi salute whenever he made certain anti-Semitic remarks, and put the results on Youtube.
A dour procurator-fiscal didn’t see the joke and caused him to be prosecuted; with the kind of self-important pomposity we have learnt to associate with the minor Jock-in-office, Sheriff O’Carroll in Airdrie mechanically fined him £800 on the basis that it wasn’t funny. An appeal was in due course refused.
Mr Meechan himself became something of a folk hero (he crowd-funded a six-figure sum to pay his costs within days), and gained support from the left as much as the right.
This all reflects an interesting comparison. The Scots as a whole have a healthy instinct of saying what they think, and taking the line that if that annoys someone else it’s too bad: think any football fixture, or for that matter any good Glasgow pub on a Saturday night.
On the other hand, the Scottish administration and a goodly proportion of the governing class don’t see things that way at all. For them, forthright speech that upsets people, except perhaps the English, is worrying and needs to be carefully controlled.
Only this year, indeed, the Scottish National Party (SNP), who form the largest party at Holyrood, fought tooth and nail – though ultimately unsuccessfully – to retain the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.
This was a seriously restrictive law making it a serious offence to say anything regarded as offensive, threatening or hostile at, outside, on the way to or from, or within sight of a public television screen showing, any football match in Scotland or where a Scottish team was playing.
But there is more to the matter than that. In early 2017, before the Meechan debacle, the always-hyperactive SNP decided that something had to be done to strengthen the laws about so-called “hate crime,” in particular the rules about how far courts should be required to increase any penalty if a crime was accompanied by evidence of hostility to particular groups (as was already the case with, for example, race and religion).
It commissioned Lord Bracadale, a rather solemn judge from the Inner House of the Court of Session, to draw up recommendations; he reported in May this year. Hostility towards people on the basis of age or gender, as well as religion or race, should (he said) aggravate any offence. And it needed to be a crime to say anything abusive likely to stir up hatred against any group whatever protected under anti-discrimination law.
The breadth of this latter is astonishing when you factor in the fact that sex, disability, marriage, civil partnership, pregnancy, sexual orientation, and gender reassignment are all protected characteristics. If you’re thinking of saying anything forthright that might cause serious dislike of lesbians or pregnant women, or for that matter men (Guardian op-ed writers, please note), watch out.
Meanwhile, in line with the SNP’s self-appointed position as a fearless crusader against sectarianism, the Justice Committee of the Scottish Parliament in 2018 commissioned a working group to consider a legal definition of “sectarianism” for Scotland. This was itself a curious move, since sectarianism, defined or undefined, was not a term of art in Scots law anyway. On the other hand, the Scots Parliament did have power to introduce criminal provisions encompassing it: a matter that let one draw one’s own conclusions.
Sure enough, in August this year the working group obliged. In a report larded with modish terms like intersectionality, it came forward with proposals yet more punishment: sectarianism (defined as hostility to anyone based on British or Irish nationality or origins, or membership of any Catholic or Protestant sect, or any social or cultural group commonly associated with such sects) should equally aggravate any offence.
You could see the next development coming. In November the Scottish government, through its Hate Crime Legislation Policy Support Officer [sic], launched a public consultation, essentially asking whether people were happy to confirm Lord Bracadale’s recommendations and those of the working group on sectarianism, or indeed whether yet further restrictions should be introduced. The consultation is ongoing; answers are due in by the end of February next year.
All this ought to worry anyone in Scotland. For one thing, the fall-out from the Meechan affair seems not to have registered even a blip at Holyrood. The Scottish legal system which Holyrood is responsible for running might have been shown up as petty, vindictive and a laughing-stock the world over.
But, instead of accepting that this as a lesson that there are some areas the criminal law might diplomatically keep out of, the government seems determined to do the opposite. It wants to make sure there is more scope for idiotic prosecutions of this kind, and indeed to increase the number of instances of social scuttlebutt and Twitter gossip which over-sensitive Scots are encouraged to waste the time of Police Scotland by reporting.
For another, it’s all very well to talk about a consultation, but it’s hard to avoid the impression that this is intended to be a rubber-stamping exercise. Notably absent is a question whether the hate crime game is worth the candle, or whether it’s right to give members of some groups, but not the rest of us, special status to complain about speech or treatment they find offensive. Indeed, since the information that comes with the consultation largely consists of the contents of, and the arguments in, the reports themselves, the idea of this as a dispassionate exercise in ascertaining genuine public opinion wears a bit thin.
Thirdly, and most importantly, arguments about freedom of speech and the right to be left alone by the agents of the state are being sidetracked into a dangerous morass of equality and identity politics. Why demand that sectarianism be legally defined, and preferably criminalised under that name? Because we need to recognise it as an “intersectional challenge.” Again, why extend the criminal law to cover all protected characteristics under the equality legislation, as Lord Bracadale wants? This actually is a good question.
The fact that an employer can’t discriminate on the basis of, say, marriage says nothing about whether it should be a crime to incite a detestation of people who live together: and if the problem is stirring up hatred per se, then it should always be illegal, whether or not the victim features on some official list of groups.
The answer we get is – you’ve probably guessed it – parity. We need “the avoidance of a hierarchy of protected characteristics.” In other words, once one officially-recognised group is given the right to criminalize those who calumniate it, all others need to be given the same right.
Or, put yet another way, those who know better prefer to look, rather in the way of the eighteenth-century Scots savants, for administrative and intellectual tidiness in the criminal law as elsewhere: so much more elegant, don’t you know, than the untidy, unregulated conversational rough-and-tumble which keeps the little people happy when watching the Old Firm at Ibrox.
There’s one small hope. You, dear reader, have a couple of months to tell the Scottish government what you think. You don’t live in Scotland? This doesn’t seem to matter: although you’re asked to give an address, in the best traditions of diversity it doesn’t have to be a Scottish one. So, whether you’re in Glasgow, Glenelg, Gloucester or for that matter Guam, now’s the opportunity to make your mark. There’s no excuse.
(Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as UKIP’s candidate in Bath)