It’s not just Scots whose free speech is under threat

Earlier this week, the authoritarian Hate Crime Act came into effect in Scotland. Anyone caught ‘stirring up hatred’ against people with certain protected characteristics – including ‘transgender identity’ – can now face up to seven years in prison.

The vague and subjective wording of the law has led many to fear that it could criminalise the social-media activity of gender-critical activists. Most notably, Harry Potter author turned gender-critical campaigner JK Rowling. Indeed, to point out the absurdity of the new Hate Crime Act, on Monday, she posted a lengthy thread on X describing a host of well-known trans figures – from broadcaster India Willoughby to convicted rapist Isla Bryson – as men. She then dared Police Scotland to arrest her for the ‘crime’ of misgendering these so-called transwomen.

Among the many applauding Rowling for standing up to the Hate Crime Act was UK prime minister Rishi Sunak. Defending her, he declared that ‘people should not be criminalised for stating simple facts on biology’ and that his Conservative Party ‘will always protect’ free speech.

But before we hail Rishi Sunak as some kind of free-speech hero, it’s worth remembering that the rest of the UK is hardly a haven for free thought and expression. Outside of Scotland, we have our fair share of onerous ‘hate speech’ laws. Just recently, far-right activist Sam Melia was sentenced to two years in prison for producing and distributing unsavoury stickers. Christian street preachers are regularly arrested and charged for publicly proclaiming their beliefs. What’s more, perhaps someone should tell Sunak that ‘stating simple facts on biology’ can also get you in trouble on this side of Hadrian’s Wall. Gender-critical feminists like Kellie-Jay Keen are routinely harassed by police for opposing trans ideology. Although feminists are rarely convicted, the process is, in many ways, the punishment.

So-called hate speech can be punished under a number of UK laws. The most prominent among these are the Public Order Act 1986, the Malicious Communications Act 1988 and the Communications Act 2003. These laws essentially turn causing offence, or ‘stirring up hatred’, into a police matter. If the Tories really want to do something about the free-speech crisis in this country, then scrapping these laws would be the place to start.

Under Part 3 of the UK-wide Public Order Act, it is a crime to ‘stir up hatred’ based on race, religious beliefs or sexual orientation. This vaguely defined offence applies to any form of communication – from words expressed on the street to books or even plays. In the most serious cases, crimes relating to inciting hatred can theoretically carry up to seven years in prison – the same maximum sentence for ‘stirring up hatred’ in Scotland’s new Hate Crime Act.

The Malicious Communications Act – which applies to England, Wales and Northern Ireland – criminalises the sending of communications, electronic or otherwise, with the ‘purpose of causing distress or anxiety’. This can include posting a dodgy joke on social media. Doing so could land you a prison sentence of up to 12 months.

The Communications Act similarly makes it a crime across the entire UK to intentionally ‘cause annoyance, inconvenience or needless anxiety to another’ via social media. This covers both posts on public platforms and messages in private message groups. Those charged under the Communications Act can face a fine or a custodial sentence of up to six months. While such laws might sound as if they aim to tackle harassing behaviour they have routinely been used against merely offensive speech.

These laws have been responsible for some of the most outrageous assaults on free speech in recent years. This includes Sam Melia’s conviction under the Public Order Act for producing offensive stickers. And it was under the Communications Act that Mark Meechan (aka Count Dankula) was infamously arrested and charged back in 2018 for a comedy video, in which he taught his girlfriend’s pug to perform the Nazi salute. At one point in 2017, it was estimated that police were using the Communications Act to arrest an average of nine people every day.

The situation is made worse by the police’s recording of ‘non-crime hate incidents’. As the name suggests, these are not criminal acts, but behaviour deemed by police to be motivated by hostility or prejudice. Non-crime hate incidents cannot, thankfully, lead to prosecution. But they do allow the government to keep an extensive database of every person who has ever been accused of causing offence. A ‘victim’ of such an incident is under no obligation to provide any evidence that anything untoward ever occurred, let alone that it was motivated by hatred. Nor does the victim need to consider themselves a victim – the perception of a third party will do. In many cases, the accused person is never even informed that their name and details have been logged into this catalogue of thoughtcriminals. This can then show up on an enhanced DBS check, jeopardising their employment prospects. More alarming still, the police’s own guidance on the recording of non-crime hate incidents was declared unlawful by the courts in 2021, but the thoughtpolice just carried on as if nothing had happened.

Of course, most of these laws were introduced long before Rishi Sunak ever set foot in 10 Downing Street. But his claim to care about free speech still rings hollow, given that they remain on the statute book. Under his watch, police have continued to target thoughtcriminals and he has never once suggested getting rid of any of the laws that allow them to do this.

Authoritarian hate-speech laws are not a problem unique to Scotland. The Scottish Hate Crime Act certainly raises the stakes – expanding the scope of what speech can be criminalised. But England and Wales are not free of the tyranny of state censorship.

If Rishi Sunak and the Conservatives really cared about protecting free speech, then they would remove every last hate-speech law from the UK statute book. Anything less is just posturing.

Lauren Smith is a staff writer at spiked.