Free Speech Rules!
A Force For Good held our "Free Speech Rules" counter-rally against Humza Yousaf when he addressed the SNP in George Square, Glasgow, 20-4-24. Yousaf resigned as First Minister 9 days later. AFFG Founder, Alistair McConnachie pictured.
In this article by Alistair, who has a degree in Scots Law, we explain why we oppose the SNP's Anti-Free Speech Act. We look at the principles it offends, the problems it creates; the objections to our position; and what can be done in the long term.
The "Hate Crime and Public Order (Scotland) Act 2021" [1] was passed on 11 March 2021 when Humza Yousaf was the Justice Secretary, although it did not come into law until 3 years later on 1 April 2024.
We have opposed it from the start and made a public submission to Holyrood at the time. [2] We protested outside Holyrood during the period it was passed [3] and we noted for posterity the names of those who voted for and against it. [4]
We examined how it works [5] and we hosted a "Free Speech Rules" Counter-Rally on Saturday 20th April in George Square, when Yousaf addressed his SNP rally (above). [6]
We have always been clear that it is not needed, it is not wanted and it must be repealed!
It is not needed because there are already laws in place to deal with threatening or even abusive behaviour without having to impinge upon the sanctity of free speech. For example, common law offences such as "Breach of the Peace", or statutory law (meaning, the law which is written down) such as the "Communications Act 2003" already deal with such matters.
It is not wanted because it offends fundamental principles for which our ancestors have fought and died, and for which many living today have served.
Let's elaborate on those principles:
We oppose the law in Principle and in Practice.
OBJECTIONS IN PRINCIPLE
1. Offends the Principle of Free Speech
Our ancestors literally fought and died for free speech and the right to speak their mind without fear or favour, without imagining that someone was going to take it the wrong way, and try to get them arrested.
2. Suppresses, and Criminalises, Political Speech
At its worst, "Hate Speech" can be seen as a legal concept intended deliberately to control, suppress and punish legitimate political debate.
This is because the fear of being accused of such a "crime" can stop people saying what needs to be said in order to do what needs to be done.
In that sense, the threat of a criminal conviction for "Hate Speech" can be used as a political tool to silence opinion. It can be used to deliberately suppress and criminalise legitimate political speech.
Jim Sillars put it well: "I think it's quite deliberate that they want us to zip our mouths and eventually zip our minds so that we never say anything they don't approve of. It's got to be repealed." [7]
3. Imposes Government Domination over our Lives – Totalitarianism in the name of Progress
It offends against the principle that the individual and society should be protected from random, arbitrary government domination over our lives. The SNP and all the politicians of all parties who voted for this law are seeking to restrict, if not silence, freedom of speech, and in the worst case, punish it!
How is such government over-reach manifest in real life?
It's when you're sitting at home one day, only to hear a knock on the door and Inspector Taggart standing there saying…"Thur's been a Tweet!"
And you know what's ironic! The SNP speak about "independence", but if independence and self-determination is to mean anything, then it surely means: Not living in a dictatorship, and being free from random, arbitrary government domination!
4. Bad Law: Unclear and Subjective
It is against the principle that the law must be clear and objective – meaning that everyone should be aware of what the law prohibits, and to know when we have broken it; and that understanding of the law must be the same from person to person. No one person should have the ability to interpret it uniquely as a result of his or her own prejudices.
If we are not clear what the law prohibits; and if it is for someone else to decide whether or not we have broken it, on the basis of whether or not they were "offended" by it; or whether or not they think we have been "stirring up hatred", then it is a bad law.
5. Bad Law: It puts the Presumption of Guilt upon the Accused
Worse, the person accusing us does not have to prove that we have broken the law. Rather, the presumption is unfairly put upon us to prove that we have not broken it.
The presumption of guilt is put upon us. We are considered guilty until we can prove ourselves innocent.
This is an inversion of the long-standing legal principle of the presumption of innocence; that one is innocent until proven guilty and that it is for the prosecutor to prove you guilty.
This up-ends that tradition. It says, Guilty, unless you can prove yourself innocent.
6. Bad Law: People lose Trust and Faith in the Law
A negative consequence of Bad Law – when subjective judgements come into play which will naturally differ from person to person, case to case, judge to judge, jury to jury – is that it encourages people to lose faith in the law. Along with that…
7. Bad Law: People lose Trust and Faith in the Police
This can damage confidence in the police.
For example, perhaps the police response does not meet your expectation. Perhaps you thought your complaint met the criminal threshold for a crime, and yet the police dismiss it.
Or perhaps you do not believe the complaint reaches the criminal threshold, but the police decide to investigate anyway, and maybe even report you to the prosecutor. You are likely to feel that you've been unfairly silenced and punished for engaging in public debate.
This is what happens when laws are not clear and objective. They end up being applied arbitrarily – that is, in a random manner! Eventually, you are going to look on the police as instruments of a domineering State, and that's not conducive to a free and healthy society.
OBJECTIONS IN PRACTICE
8. The SNP is deliberately Fuelling Complaints
Between 11-31 March 2024, the SNP spent £400,000 of our taxpayers' money on posters and adverts encouraging people to complain. [8] That is, they were directly creating more work for the already over-stretched police!
9. The SNP is Encouraging Confusion and Anxiety
The advertising campaign is encouraging people to complain at the same time as it is not explaining what is meant to be "hateful". It is not explaining what can and cannot be said, or what would break the law. Therefore, it is creating an atmosphere of confusion and anxiety about what can "safely" be said!
10. The SNP is Encouraging people to Waste Police Time
By encouraging people to make these complaints – while not explaining what sort of complaints might break the law – the SNP is encouraging people to make frivolous complaints, and/or vexatious complaints intended to deliberately try to hurt others.
All of this adds up to a waste of police time, resources and money. It diverts Police from much more serious things.
11. Harmful Impact on Parents, School Children, and Education
It is possible that parents and teachers could be unwilling to challenge various controversial theories being taught as "fact" in schools, such as "Critical Race Theory", or "Transgender Ideology", simply because they might be afraid of being accused of "a hate speech crime".
Furthermore, the law risks criminalising school children before they are even in the adult world! For example, police could be brought into playground arguments. This could end up harming a young person's life if he or she were to be reported or convicted of something unnecessarily.
In a leaflet distributed by the Scottish Union for Education at the pro-free speech rally outside Holyrood on the day that the law came into power (1-4-24), it is stated that Edinburgh's Royal High School website: "links to a policy timeline in which one possible outcome is that the school will report the hate crime to Police Scotland. Beneath this is a link to the respectme campaign, which links directly to a Police Scotland hate crime reporting page." [9]
This law could criminalise school children for behaviour which should not be criminal. Or it could place a "Non Crime Hate Incident" on their records, with a possible detrimental effect on their adult lives.
And so for all these reasons it should be repealed.
ANSWERING THE OBJECTIONS
"I'm never going to abuse people so why should I worry?"
That's a good point, and here's a couple of responses.
Firstly, this is a law where one's words or behaviour are perceived by others to be hateful.
You might not think you are being "threatening or abusive or insulting", but someone else might!
Someone else perceives your words or behaviour to be "hate" and the police have to investigate.
So, how can you know how others will perceive your words?
Secondly, most of us like to think that we can normally avoid causing undue offence to other people by simply being polite.
However, the problem with this law is the extent to which it could restrict freedom of speech on legitimate political matters which are controversial by nature.
One could find oneself accused of "hate" when one is simply articulating one's point of view on political matters.
For example, there is a real concern that this law could restrict, even punish legitimate political points of view on gender theory, so-called "critical race theory", immigration, controversial historical matters, even foreign affairs such as one's opinions on foreign conflicts.
It is clearly a bad law, and can only lead to a suppression of debate.
"But it's just about safety for vulnerable people."
That is an exaggerated justification. At the same time it ignores the downsides which we address above.
In particular, it ignores the chilling effect on legitimate political speech and the potential criminalisation of what is perfectly normal and necessary disagreement on fundamental and controversial issues.
And here is the thing with the so-called "safety" justification.
The flip side is the cost to the rest of society.
In 2020 they shut the entire country down in the name of "safety" – but at what cost to freedom of speech and freedom of movement, at what cost to the economy, to mental and physical health, to our well-being?
Now they say they want to zip our mouths, but at what cost to freedom of speech? At what cost to political debate? At what cost to respect for the law and the police, when it is applied to some people and not to others?
"There is a rising tide of intolerance."
The SNP will tell us we're witnessing a "rising tide of hatred". It's more like a rising tide of intolerance from the SNP and Greens against those who disagree with them!
WHAT IS TO BE DONE?
1. Defences which Exist already as Precedent
As soon as the law was brought in, thousands of complaints were made to the police about Humza Yousaf's speech in Holyrood on 10 June 2020. Many people consider it to be "anti-white".
There were so many complaints that the police had to produce a "canned" response, to be used by their officers.
It was revealed in The Scottish Sun on 13 April 2024, below. [10]
The police decided it did not even merit recording as a "Non Crime Hate Incident" – an incident which they consider involves "hate" but which does not reach the criminal threshold of "stirring up hatred" or "likely to stir up hatred".
Of course, that's all debatable, but what is interesting is the police justifications not to proceed.
These justifications can be quoted back as precedent if one needs to defend others in future.
1. The words were making reference to one's "own personal experience."
2. "Nothing contained in the speech was threatening, abusive or insulting." (Well, that's a matter of subjective opinion!)
3. The words were "pointing out a matter of fact".
4. "There was no malice or ill will towards any person or group displayed in anything said".
5. The "context, content and intent of the speech are protected by Article 10 of the European Convention of Human Rights – Freedom of Expression.
6. The Act only covers incidents after midnight on 1 April 2024.
2. Campaign for it to be Repealed
We do this on the basis that it offends the British values of Freedom of Speech, Debate and Enquiry, which our forefathers fought for.
We do that by emphasising the principles at stake, and the objections which we've mentioned.
But we also do it by using free speech. The protests which we attend – such as A Force For Good's "Free Speech Rules" Counter-Rally – are living examples of using our free speech!
After all, the future belongs to the people who show up!
3. Introduce Stronger Defences into the Act
We should always set the highest possible bar for Free Speech.
Jim Sillars made the point that if you are touching on anything to do with Free Speech then, if you're restricting it and punishing it, you'd better set the highest possible bar! [7] You better give speech the most leeway possible, the most room to manoeuvre, the most scope to be said – before you do anything against it!
We should not leave the decision on whether or not to investigate, prosecute and criminalise simply to the subjective, personal whims or prejudices of police officers, or judges, or jurors.
If it is not repealed, then we should, at least, introduce stronger defences for freedom of speech in the current Act. We listed examples of such water-tight defences in our submission to Holyrood in 2020. [2]
4. Encourage Jury Nullification in such Cases
When a jury refuses to convict then it is called Jury Nullification.
Much is made of "the rule of law". This means that judgements are made in accordance with a written law, or what is, and has been, commonly accepted behaviour, rather than being made in an arbitrary manner.
But only a jury can make Parliament's laws meaningful by convicting transgressors. That is, a randomly selected jury of common people can act as the final arbiters of "the rule of law".
The jury system can help to ensure better legislation by defending the common person against an unjust legal order.
They do this by refusing to convict.
After all, there is no requirement for a jury to convict, even when the "black letter of the law" appears to have been broken.
By refusing to convict, a jury makes a stand against bad law and can force a change in legislation. Thus the jury system can be an essential element of a healthy democracy and can help to correct bad law.
5. It may Crumble when Challenged in Court
This might be more likely to happen if the accused is a high profile person. The law could be seen to collapse under the weight of its own contradictions.
6. Campaign for a Freedom of Speech Act
Perhaps it is time for something like the First Amendment in the USA which states: Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
7. Police in Scotland must Review their Approach to "Non Crime Hate Incidents"
They must follow the example in England and Wales where the bar is set high before such an incident is officially recorded. After all, these NCHI records could be to the future detriment of the person who has been recorded!
Furthermore, they should wipe entirely their existing database of NCHI records.
Another problem with NCHI records is that unscrupulous politicians could use such records to claim "evidence" of an increase in "hate" in certain areas of political discourse. They could use this "evidence" to urge more laws to suppress freedom of speech in those political areas.
Scottish Daily Mail, 27-3-24.
8. Political Parties should Incorporate our Arguments and Policy Suggestions into their Manifestos
We're laying it out clearly for you guys. We're happy if you just lift our material. There's no excuse not to!
9. We can all Use our Vote Wisely
We have listed all the politicians and parties who voted for this law to pass on 11 March 2021. [4]
Remember that it was not only the SNP and Greens, but also Labour and Lib Dems who voted for it overwhelmingly! Remember this when you next use your vote.
You may wish to question your candidates on their opinion of the Hate Speech Law, and then vote appropriately!
CONCLUSION
It is said that "Truth is Hate to those who Hate the Truth."
This Act of Humza Yousaf and the SNP and Green Coalition, backed by Labour and the Lib Dems is of-a-piece with the overall desire to control us, the People.
For us, freedom of speech is a principle of democracy because it is essential to the open debate upon which a vibrant political culture is founded and maintained.
It is one of our National Values!
It's been said that the strongest power is that which can forbid its own mention. Anybody who attempts to suppress political debate should be suspected of trying to defend illegitimate power.
So let's end with these words from Robert Burns, from his poem Here's to them that's Awa'.
Here's freedom to him who would read.
Here's freedom to him who would write.
For there's none ever feared that the truth should be heard
Than he whom the truth would indict.
Let's reject this Act before it divides our country even further.
Let's campaign for this law's Repeal, and let's stand up for the principles of freedom of thought, freedom of speech, freedom of debate, freedom of enquiry, and freedom of assembly.
And at the General Election, use your vote carefully!
AFFG Founder, Alistair McConnachie, recites this verse at our "Free Speech Rules" Counter-Rally in George Square, Glasgow, 20-4-24.
REFERENCES
[1] It is detailed on the UK Legislation website here.
[2] For example, when the Justice Committee of the Scottish Parliament called for public views regarding its proposed "Hate Crime and Public Order (Scotland) Bill", back in 2020, we made this submission which includes a comprehensive Freedom of Speech clause. See "Recommendation Number 4: A Strong Freedom of Expression Clause" towards the end of our submission. (24 July 2020)
[3] Humza Says You've Had a Bit too Much to Think (Part 1, 16 March 2021)
[4] The Free Speech Hall of Shame, and Fame (13 March 2021)
[5] Humza Says You've Had a Bit too Much to Think (Part 2, 14 March 2024)
[6] We Get Humza Yousaf Telt! (26 April 2024)
[7] The Kevin McKenna Interview, The Herald, 6-4-24, p.10.
[8] Ben Borland, "Anger £400k of public money was blown on promoting Scotland's new hate crime law", Scottish Daily Express, online 12-4-24.
[9] "Police Scotland's Hate Crime Monster is coming for our kids", Scottish Union for Education, leaflet distributed, 1-4-24.
[10] Chris Musson and Iona Brownlie, "Stick to the Script", The Scottish Sun, 13-4-24, pp.12-13 at 13.
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