Can the Edinburgh Fringe survive the Hate Crime Act?

The most chilling legislation to threaten the freedom of the Great British Jester in decades came into force this April Fool’s Day. For those in my chosen trade, live comedy, Scotland’s Hate Crime Act is like a python that has already encircled us, slowly threatening to squeeze and throttle us for good.

As a law, the Hate Crime and Public Order (Scotland) Act 2021 builds incrementally on the UK-wide Public Order Act 1986, although it makes that earlier illiberal statute seem almost quaint in comparison. The Public Order Act criminalises speech actually intended to stir up hatred, rather than merely ‘likely’ to, as is now the case in Scotland.

To the previously established protected categories (including race, religion and sexual orientation) against which hatred can be stirred, the new Hate Crime Act adds gender identity, chromosomal intersexuality and whatever else is waiting in the sidings to be shunted and coupled on to that ominous ‘+’ that now comes after LGBT.

Quite unspeakably, the Hate Crime Act also includes any such utterances made in one’s own home. An idea surely as anathema to traditional notions of the sovereign individual and the limits of state surveillance as could be imagined. Nineteen Eighty-Four is invoked so regularly that it is losing its power to shock. But for God’s sake, this bit is literally right there on page one. All that remains is to remind you to put the clocks forward so that they strike 13.

How far Scotland has fallen. In the 18th century, during the Scottish Enlightenment, it made perhaps the greatest per-capita contribution to free inquiry in philosophy and the natural sciences of anywhere in the world. Edinburgh’s David Hume is still regarded by many as the greatest Anglophone philosopher in history. It was he, said Immanuel Kant, that ‘first… interrupted my dogmatic slumber’. Free speech – the right to challenge all orthodoxy – was the absolute sine qua non of all this.

Meanwhile, in the 21st century, it has fallen upon a bestselling children’s author to defend Scotland’s once great legacy. JK Rowling immediately stepped up and tested the Hate Crime Act on X, daring police to investigate and arrest her. She stated, as baldly as her weaponised gift for prose could muster, that a selection of 10 ‘transwomen’ – ranging from tiresome TV pundits to actual rapists – are in fact men. So far, Rowling’s liberty remains undefiled. Game and first set to Team Hate.

This was encouraging and satisfying. But a bigger test of the Hate Crime Act is still yet to come. In August, the Edinburgh Fringe, the world’s biggest arts and comedy festival, will return to Scotland. The police have said they will not ‘target’ performers for arrest, but they will respond to every single complaint of ‘hate’, including against fictional representations on stage.

As ever, the festival will be dominated by impecunious comedians, sketchy sketch troupes and edgy, experimental theatre. Very few of these performers will be arriving with any actual ‘hate’ in their hearts, any more than cash in their pockets. But hatred, like beauty, is in the eye and ear of the beholder. It is not hard to imagine the scenarios that could lead to an unwelcome visit from the filth. How many comedians will take the risk of even the most harmless teasing of a protected group? Of, say, referring to Nicola Sturgeon – as I did last year – as ‘a perfectly nice chap’, or Humza Yousaf as ‘formerly Cat Stevens’?

These are not devastating bon mots, I am well aware. But unless comics and performers are willing to wound a little here and there, one might as well watch the sword fights in The Mark of Zorro reenacted with foam rapiers.

Maybe I’m wrong. Perhaps audiences really will prefer their comedy with police guardrails in place. But there are, said Townes van Zandt, only two kinds of songs in the end: the blues and zip-a-dee-doo-dah. The comedy equivalent is love and hate. The best stuff weaves these two together into a single braid. It mixes them into a cocktail, sweetness with a kick. Remove the Angostura bitters of hate and don’t be surprised if all you are left with is a Sunny Delight.

By criminalising hatred, Scotland risks setting ablaze a whole host of our cultural treasures. I fear not only for the postwar era of irreverent comedy, but also our whole canon of spite and scorn going back to Jonathan Swift and beyond. We are facing something akin to a modern-day burning of the Great Library of Alexandria.

One such important work is Shakespeare’s Hamlet, considered the greatest play in the English language by broadly common consent. Throughout his unequalled four hours on stage, Hamlet expresses hatred more uniformly than any other emotion. Hatred for his mother, for his former crush, for women in general. For his father’s brother, his treacherous friends and for his own inability to act.

In a scene that I would save from that burning library before almost every other in Shakespeare, Hamlet and the gravedigger trade contempt and mockery for pretty much every affectation of mankind. For high and low and their ridiculous, fragile airs. All end up ‘knocked about the sconce with a dirty shovel’. Presumably, this kind of public display of mockery and disdain is now illegal north of Hadrian’s Wall.

In a short speech that, for me, plumbs depths of human understanding scarcely guessed at, Hamlet reminds us all of the literally unvarnished truth – that however we presently identify, we are merely the dead to be.

‘Alas, poor Yorick! I knew him, Horatio: a fellow of infinite jest, of most excellent fancy: he hath borne me on his back a thousand times; and now, how abhorred in my imagination it is!’

It is no coincidence that the image of Hamlet addressing the skull of Yorick, his former friend and father figure, is the single most iconic in world theatre. Harold Bloom asserted that, with Hamlet’s soliloquies, Shakespeare effectively ‘invented’ the human. When the SNP says that it wants to know what you are thinking when you are sitting at home alone, to purge every last bit of hate in your heart, it is your very humanity that is at stake.

Simon Evans is a spiked columnist and stand-up comedian.