The Scottish government’s illiberal Hate Crime and Public Order Act isn’t even being enforced yet and already Police Scotland are being accused of behaving like a pound shop Stasi. The Conservative MSP, Murdo Fraser discovered last week that police had recorded him as a perpetrator of a ‘hate incident’ without informing him or giving him a chance to defend himself.

An anonymous trans activist complained last year about a tweet in which the MSP had suggested that identifying as a non-binary was no more valid than ‘identifying as a cat’. He was not addressing any individual but responding to the Scottish government’s Non-Binary Action Plan.

You might think a ‘non-crime hate incident’ is a contradiction in terms

The police duly logged this as a hate incident even though they found no evidence that Mr Fraser had broken the law. He only became aware it when the activist reported his ‘crime reference number’ to Holyrood’s Ethical Standards Commissioner and called for him to be found in breach of the MSPs’ Code of Conduct. It then took four months for Police Scotland to admit that they’d recorded his hate incident ‘in line with national guidance.’

To say that Mr Fraser is upset hardly is a measure of it. He is threatening to take legal action against the force to delete the incident and he says Police Scotland have ‘behaved not just outrageously but unlawfully’.

He claims the police have violated every free speech statute from the Human Rights Act to the Data Protection Act, and has thrown in, for good measure, the 2010 Equality Act which protects ‘philosophical beliefs’. He wants the practice of recording these hate incidents to be halted immediately as they have been in England.

But Police Scotland are unapologetic. Only last week, Jo Farrell, the chief Constable of Scotland defended the recording of hate incidents as a way of ‘assessing the state of community tensions’. The First Minister, Humza Yousaf, insists that it is right to record hate incidents saying they can reveal where ‘spikes’ in hate crimes are taking place. Such as, presumably, the Scottish Parliament.

Gender critical commentators like Scotsman journalist Susan Dalgety, and just about everyone who has ever been critical of the Scottish government’s gender reforms, are firing off Subject Access Requests to Police Scotland to find if they too have been logged for hate incidents. Dalgety wrote the original ‘non-binary cat’ article in the Scotsman which Mr Fraser praised in his tweet. Thousands of these ‘non-crime hate incidents’ are being recorded by police every year.

Now you might think a ‘non-crime hate incident’ is a contradiction in terms. And of course it is: how can something be recorded as a crime when it isn’t one? Police Scotland define a hate crime as any incident ‘which the victim or anyone else perceives as motivated by malice or ill will.’ The assumption is that everyone who complains about hate is automatically a ‘victim’, not a ‘complainant’ the normal usage in the Scottish justice system. It is effectively guilt by accusation. No evidence is required and no ‘reasonable person’ is brought in to assess the merit or otherwise of the charge.

Defenders of the policy insist that since hate incidents carry no formal penalty what’s the problem? But they can carry a form of administrative punishment. These records can be revealed by the police under so called ‘enhanced disclosure’ – the background checks undertaken by HR departments when someone applies for a job in the public sector. A hate incident could destroy your career and you’d know nothing about it. Perhaps this is one way the ‘blob’ ensures that only the bien pensants get to occupy senior positions in public service.

In England, the practice of recording hate incidents has been reviewed following a High Court ruling in 2021 that they have a ‘chilling effect on freedom of expression’. The case was brought by a former police officer Harry Miller, whose tweet that people cannot change biological sex was recorded by Humberside Police as a hate incident. But in Scotland this practice is to continue according to the chief constable.

And next week, when the new Hate Crime and Public Order Act comes into force, 500 specially-trained ‘hate crime champions’ drawn from police ranks will be fanning out across Scotland investigating allegations of the new offence of ‘stirring up hatred’. This is a crime which is as illiberal as it is incoherent.

Writers like the SNP- supporting crime novelist, Val McDermid – one of Nicola Sturgeon’s favourites – warn that the new law could limit what even fictitious characters in novels are allowed to say. The SNP government seems determined, not just to chill free speech in Scotland but put it into the deep freeze.