Scottish Labour: Waiting for May 26 is not a viable strategy.

 On 31st October, after practising the law for 46 years, I fully retired.

I had various plans for my time but in truth, so far, have realised none of them, I haven't even yet managed to get my bus pass,

But you can't just sit about doing nothing forever so I have decided to return to blogging.

And my first subject is one very close to my heart. The strategy and ulttimate electoral fate of the Scottish Labour Party 

And I worry about both of these.

There clearly was an assumption, post 4th July, that all we needed to do between then and May 2036 was to do very little, The SNP were supposed to be a busted flush and the wave of goodwill which normally accompanies a new (UK) Government would spill over sufficiently to Scotland see us over the line.

Except neither of these things have come to pass.

I start with the situation in Scotland alone.. There has been much attention to the  SNP's recent run of by=election losses. But the missed factor I think is that while the SNP vote has been down in most of these it has remained substantial and that many of their defeats, by us, we also saw a decline in our vote albeit generally a less serious one. The big gainers, when they have stood, is inclined to be the new kids on the block. Reform UK, who despite having no significant presence in Scotland, and indeed not yet even a Scottish leader, are generally polling at upwards of 10% and on occasion nearly 20%. All the indications are that come 2026 they, at least as much as us, are likely to be a significant recipient of those no longer willing to vote SNP.

But, anyway, what alternative are we offering? On Wednesday, we had the budget. The time for opposition responses is much curtailed by the ludicrous rules of debate at Holyrood but, nonetheless, our response was little more than complaints the nationalists, where they were increasing spending, were not doing so enough, while in the relatively few areas they were reducing expenditure, they were wrong to do so. Although we were opposed to the budget, there was no suggestion how we would have proceeded differently. 

And that is a much wider criticism of our approach. All that we offer in public services is "more efficiency" without spelling out what that involves, let alone considering why, if that is so easy, the SNP haven't done it themselves.  The Auditor General has recent spelt out the strategic failure of the Scottish Government in spending money without knowing where that money is to come from in even the medium tierm. Do we agree with this criticism? If so what are we planning to do about it? The answer is silence as to commit to amending the big ticket items: free personal care, tuition fees, the Scottish Child Payment would all be, supposedly. unpopular. Leaving us as silent as the SNP as to their long term sustainability.  Even relatively minor changes, such as restoring prescription charges for the15% of the population who do not get them free in England, is not something we show any sign of being prepared to contemplate. And yet we continue to offer entirely uncosted pledges to spend "more" on local government and, more recently, to reintroduce the Winter Fuel Payment. 

The assumption is that we have to take this approach because the only Party we are truly in a contest is the SNP. But it is not nearly as simple as that. You can be confident the Tories will fight the 2026 Election on a platform that involves bringing Scottish rates of income tax in line with those in England. As will, I strongly suspect, Reform. It is difficult to see how we oppose this, now that English Rates are being set by a Labour Government, yet that is something else we don't seem to be engaged with.

And that then leads me to the problems passed to us by the wider UK political situation. Only a willfully blind Labour supporter could maintain that our first five months have been an unalloyed success. This past week's relaunch, after such a short period in Government, was unprecedented yet necessary.  It is not required here for me to analyse here here why that has been the case but, suffice to say, the prospect of us fighting Holyrood 26 during an extended honeymoon from Westminster 24 has gone. We need to face up to the fact that we will have to win in 26 thanks to our own efforts.

I close with a simple observation. Simply "not being our opponent(s)" has been tried in a very recent election as pretty much the only thing on offer. By Kamala Harris. We know the result of that exercise. 

Ten years on

Since just about everybody else involved at the time of the independence referendum has had their say, I suppose I had better have mine. 

The odd thing about it was that it was such a meaningless exercise. The Yes proposition was absurd. That two counties united for more than three hundred years could be separated in 18 months. That the larger of these countries would allow the departing one to continue to use their currency. That the EU, of which the UK was then a member, would allow a departing Scotland to seamlessly become a member, again within 18 months. That NATO would be fine with our joining while simultaneously we closed down their principal nuclear resource in the Western Atlantic. That, despite all of the evidence to the contrary, all of this could be achieved while Scottish people would be instantly better off. I could go on. 

In reality clearly none of this would have come to pass had there been a Yes vote and the leaders of that cause knew that perfectly well. A Yes vote wouldn't have made any of this happen. And there would still have been elections here where the electorate, having realised they had been sold a false prospectus would have reacted appropriately. Salmond himself recognised this by suggesting independence should be completed in March 2016 before the scheduled Holyrood vote that May but was still ignoring, as he must have known, that formally separating from the UK, even creating our own HMRC and DWP alone, could not possibly be achieved within that timescale. As was indeed demonstrated by the time it subsequently took to set up Social Security Scotland, to administer but a small number of benefits and proceeding with goodwill on both sides.

What would undoubtedly have happened after a Yes vote would have been the withdrawal of the Barnett subsidy and the consequential real term cuts in both the provision of public services and the wages of those paid to provide them even while we remained nominally within the UK That in turn would have been likely to see a mass exodus of those with transferable skills to South of the Border. And that's before those in the public sector realised that, the UK having stuck to its public position that Scotland couldn't use the Pound Sterling, they were facing the imminent prospect of being paid in a significantly devalued Scottish Pound. 

And, as I say, there would still have been ordinary elections. So, at some point, probably as soon as May 2016, there would have been elected a Holyrood Parliament elected on the express premise of calling the whole thing off. It would all have been a bit embarrassing, and more than a little expensive,  but that's all. Scotland would never have actually been independent.

Which, in an odd way, might have put the whole thing to bed sooner than it actually has.

Ten years from now people will look back in astonishment as to how the SNP got away with insisting they were shortly to attempt another go. Despite the firm position of successive UK Prime Ministers that there was no prospect of that and indeed majority Scottish opinion sharing that view. It was all just bizarre. 

But it's finally over. We all simply await the coup de grace in May 2026.

About Reform UK

 And so it is over. 

I hesitated to say anything much about the election, not least because I was out of the Country for much of it, visiting my mother-in-law in Hungary, involving a cleared diary, flights and car hire booked and Andi. my wife booking time off work, long before Sunak's surprise announcement. To have suggested we wouldn't go would have led, shall we say, to marital disharmony, but to be honest it never occurred to me, for I have kind of lost interest and enthusiasm for front line politics. For the first election since 1970, I delivered not a single leaflet, let alone knocked on a single door. 

We were however back on 2nd July, in time to vote and, in the early hours of July 5th, celebrate my friend and comrade, Katrina Murray, becoming our new MP as part of Labour's Scottish landslide. 

In the internet age, being abroad hadn't prevented following the election and, while you will have to take my word for it, my gut feeling on the eve of poll was that the Tories would not do quite as badly, and the SNP a bit worse than the polls predicted. As indeed came to pass. 

But there will be many more people steeped in the campaign able to digest it more readily than me. 

Rather I am going to point out something largely ignored by the Scottish media but which seems to me to be of significance. Starting with the result in my own seat. Katrina obviously won and my departing MP, Stuart McDonald, came a relatively close second. But the Party in third place was not the Tories, or the Libs or even the Greens. It was Reform UK, in the presence of a man called Billy Ross, of whom I know nothing except his name. But he wasn't just third, he was a comfortable third, his 3000+ votes placing him well ahead of the just less than 2000 secured by the Tories and securing just less than twice the Green vote and well over twice that of the Lib-Dems. 

And it wasn't just here this happened. Reform UK were third in every seat in North Lanarkshire. And across Scotland they were comfortably ahead of the Greens in fifth place and just two and a half percentage points behind the Libs in fourth. Indeed if you discount the the tactical vote the Libs clearly enjoyed from my Party and the Tories in the six seats they secured, and to be honest only truly contested, it is possible Reform UK would have ended up the fourth Party in terms of the popular vote in Scotland. And while they came nowhere close to winning anything, on their route, they clearly cost the Tories two or three.

And they did this breaking all the conventional assumptions of Scottish Politics. Firstly they made no pretention to being a "Scottish" Party. They weren't "Scottish Reform UK" or even "Reform UK (Scotland)". They were just Reform UK. Then, they didn't even have a Scottish leader. At all, not even nominally. And they took part not at all in the exclusively Scottish election debates. Nor made any fuss about that as did Alba, despite the latter ending up with a very small fraction indeed of the Reform UK vote. To be fair, without a Scottish leader, it is difficult to see who would have participated on their behalf. Although perhaps Billy Ross could have stepped up to the mark. Whoever he is. 

And, to the best of my recollection, they did not deliver a single leaflet to my door. Even the freepost. 

My point however is this. Reform UK are now a feature of Scottish politics and yet everybody wants to ignore that because it does not fit with the accepted narrative that in some way  Scotland is more progressive than the rest of the UK, immune to the populist right.  Yet the electoral results simply don't fit that. 

But never mind that. Let's look ahead to the May 2026 election, assuming the Scottish Parliament term runs that long. Reform UK are likely to be represented thereafter, probably with more seats than the Greens. Given the result on Thursday, it is difficult to see how they could be excluded from the leaders' debates and while that might expose their callow populism, it might instead provide them with an opportunity to show themselves as a real player in Scotland, despite the best efforts of the press to put their fingers in their ears.

And while they are clearly not going to win in 2026, their presence in the Parliament with more representatives than The Scottish Green Party would certainly change the narrative about Scottish public opinion. I'd even suggest possibly for the better.

They do however need a leader. Perhaps this could be the opportunity for Billy Ross to seize his moment.

One woman and her thumb.

 In the Summer of the year 2000, Maureen, my wife, and I went on holiday to central Italy. We stayed just outside the hilltop village of Paciano, where we had spent our honeymoon inside the wall twelve years before. This time howeverwe wqre  in an Agriturismo which we had also stayed in before more recently and indeed where we would, twelve years later, spend our last holiday together. 

But we did not holiday alone for we invited friends to join us. They were my very best pal and his partner, now wife, together with their wee girl, then aged two or three. 

They are both well known figures on the Scottish political scene, then and now, so I'll not draw them into this involuntarily. I'll accordingly refer to my best pal only as BP, although that will probably be sufficient identification for some. We were a few days before them in arriving. 

Anyway, when they did arrive, BP arrived clutching a book. No great surprise as he was and is a voracious reader, but usually of works of non fiction, particularly political biographies. 

But this wasn't a work of non fiction, it was a novel. A hardback with a boldly coloured cover. 

On their arrival, we had a kind of anticipation of the evening ahead. We'd eat, the bambina would go off to bed and the four adults would then spend the hours late in to the night sitting on the covered terrace talking and good naturedly arguing about politics or indeed any other topic that came up.

Only that's not what happened. For, after a brief polite interval, BP announced that he was going to bed as he wanted to read his book. Which he did, right through the night and indeed back on the terrace once dawn had broken. Until it was done. Whereupon he insisted that I must read it as well, "But it is children's book!" I responded, the name of the author being already vaguely known to me. "It is much more than that" he replied. So I started reading and then performed pretty much the same exercise as him over the next day or so. Stopping only to eat and engage in the occasional dip in the pool. It was, after all, the high summer in Italy. And, when I'd finished, I insisted Maureen must read it as well. For, it was indeed. much more than a children's book. 

Now, by now, you have probably worked out that the book's title was Harry Potter and the Goblet of Fire. 

And as the holiday went on, because of its distinctive cover, you realised that the book was in pretty much every teenage hand. In the hand of the girl on a bar terrace being assailed by her slightly younger brother that she was reading too slowly, preventing him from getting started. Perhaps most astonishingly in the hand of Dutch and German kids reading it with difficulty in English because they couldn't wait for the native translation. And, just like BP and I, in a fair number of adult hands as well.

On my return home I obtained and devoured the previous three volumes and then awaited the next instalment as impatiently as any thirteen year old. 

However, at least for a while, I remained largely ignorant of the author beyond that she lived in Edinburgh and was becoming steadily more famous. But as you read the books you realised "where she stood" and that was firmly on the left. Not the mad left but the left. Her targets: innovative teachers over prescriptive ones; against the excesses of the tabloid press; for those who prided achievement over celebrity; against prejudice of any sort; not just for good over evil but for right over wrong. And in her central characters, for girls being as brave as boys, not as "tomboys", as earlier children's literature might have had it, but as proper girls. Albeit just that wee bit more clever and sensible than the boys. In Hermione's case, much cleverer than her two main co-adventurers. Without Hermione ever, other than good naturedly, claiming superiority to them. Albeit with a fair amount of exasperation. I loved the books, alongside literally hundreds of millions of others. Even as I write here, I am thinking I might read them again after my imminent retirement.

And then, of course, came the films. And so much else, and the riches that rightly followed. 

But then slowly, as her fame demanded, the author herself became steadily better known. Not just her personal history before her literary rise to fame but that, following her rise, she proved not just to talk the talk on being on the left but to walk the walk as well. Not only in paying her taxes in full, and being proud to say that, but in her literally giving her money away to her chosen charities. To Multiple Sclerosis support and research,  in acknowledgement of the disease that claimed her mother's life but also to Lumos, the charity she personally set up to assist abandoned or orphaned children in central Europe. And to so many other worthy causes.  

And also, directly to political causes: to the Labour Party and probably most famously. in 2014, to Better Together. She never once sought personal reward or popularity in return. Indeed in some cases earned the exact opposite in response. But she did what she thought was right. Dare I say it, like Harry and Hermione and Ron. 

As she did the same in June 2020 when she entered the Trans debate, Nobody required her to do it. In the essay that accompanied her most major intervention, she had clearly read widely on the issue and must have anticipated the response from the hysterics on the other side. But she did it anyway. Because she thought it was right. 

And, at the time, it must have been for those most besieged, like the relief of Mafeking had felt to Baden-Powell. I mean no disrespect to those then in the front line, but while they did have a small coterie of sisters, they, and their persecution, had, until then, largely gone unnoticed in the world beyond University Campuses and public sector HR Departments. They must have thought they would be besieged forever. And then, suddenly, Forstater and Stock, Bindel and Joyce, I write them out in a verse, had the support of the most famous feminist in the world. And the world paid attention. And has kept paying attention. I am sure JKR has no desire whatsoever to own a white horse but, should she show the vaguest intention of wanting one, I'm certain the money would be instantly raised by the sisters through public subscription. Money which she would insist on refunding to a worthy cause. Even while wondering what exactly to do with the horse.

And so to this week. It is no accident that the Hate Crime etc,.Act was mooted just before and proposed to go forward just after Ms Rowling's initial major intervention. Unsurprisingly, the attention seeking Minister in charge was either too stupid to notice or too stupid to think through its potential consequence for him. The Act doesn't. as I've pointed out in earlier blogs this very week, actually change the law. But its trans supporters were led to believe that it did by a hopelessly out of his depth Minister, now our First Minister. He had been persuaded in doing so he would prove to have been on the right side of history by a small number of men dressed as women who had persuaded him in turn that changing the law would be popular. And although he hadn't changed the law, he led them in turn to believe that he had. 

But JKR wasn't having that. In an intervention perhaps blunter than even some of her strongest supporters might have anticipateded, she pointed that claiming you are a woman does not make actually make you a woman. Unless, of course. you are a woman. And the response of the Scottish establishment was almost instant. It was to run away. Not only was it announced that she hadn't broken the law but indeed she hadn't even "committed" a "non crime hate incident," Whatever that ever was, it is unlikely to have much of a future duration, even as a concept. Useless, in the midst of his rout, has been left demanding people stop making "hate crime " complaints, having at the start of the week, encouraged them to do so. The rest of the Scottish Cabinet appears to have disappeared in to thin air. The next supposed advance of  the Trans rights boys, a ban on "Conversion Therapy", an equally incoherent proposition, is I suspect about to disappear into the longest of long grass and we will finally get to the point where people will be free to state publicly that Trans "Demands" are not the same as Trans "Rights". Unless actual women will sign off on them.

One woman, albeit a very accomplished one, has taken on the entire SNP establishment, all their Spads and other advisers, all their publicly funded satraps in the third sector, all their sycophants in the press, all those opposition politicians who have laid down to this nonsense to date. And she has triumphed. Armed with nothing more than her reputation, a warm wind at her back, and, on twitter, her thumb. 

Useless has criminalised himself (accidentally).

 I have just finished two well read blogs about the Hate Crime Act concluding that it doesn't, in truth, materially change the law at all. But in the process I have come across something that has been produced accidentally by that legislation that I think has changed the law, Useless appears to have accidentally criminalised the entire SNP.

Let's start with the wording of the contentious section 4, particularly section 4(1).

It reads:-

4. Offences of stirring up hatred

(1)A person commits an offence if—

(a)the person—

(i)behaves in a manner that a reasonable person would consider to be threatening, abusive or insulting, or

(ii)communicates to another person material that a reasonable person would consider to be threatening, abusive or insulting, and

(b)either—

(i)in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins, or

(ii)a reasonable person would consider the behaviour or the communication of the material to be likely to result in hatred being stirred up against such a group.

But, here is a wee bit of free legal advice. When you interpret any Statute, you can discard any superfluous "ors".

So let's do that here. 

4. Offences of stirring up hatred

(1)A person commits an offence if—

(a)the person—

(i)behaves in a manner that a reasonable person would consider to insulting and

(b)either—

(i)in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to nationality or

(ii)a reasonable person would consider the behaviour or the communication of the material to be likely to result in hatred being stirred up against such a group.

See what is left? That if you refer to English people in a manner that "a reasonable person" might consider to be "insulting" (for the avoidance of doubt, nothing more than insulting)for the rest are "ors"  then you have committed a crime. Even if you didn't intend to break the law. 

But the whole rationale of the SNP is insulting to English people, for it proceeds on the assumption that we are somehow "hurt" by being in the same Nation State. There would be no difficulty in finding any number of, not just English, people who regard that as insulting.

Now, how we get to this point from earlier legislation cut and pasted in to this Act by lazy civil servants overseen by a really thick Minister, would be entertaining for very few but boring for the vast majority so you'll have to accept my word for it that I have worked that out.

Even I do not think being a Scottish Nationalist should be a crime. But Useless appears to have made it so, as soon as you write it down or even open your mouth to support it in the presence of others.

So the next time you see or hear reference to the English stealing our oil/water/wind, feel free to report it to the Police. Difficult to see that this is not (accidentally) a crime. 

And as a final twist, there is a general defence under s.9 of the Hate Crime Act that you were exercising freedom of expression. Except it only applies to behaviour that might otherwise be "Threatening or Abusive" as required by the other provisions of the Act. But it does not apply to behaviour that is (merely) "insulting". Useless was too stupid or lazy to notice that. Sorry Nats to cause you any anxiety but you were those who promoted him. 

Further to La Debacle.

 Yesterday morning, I finished my blog under the shortened title in the last two words above.

And to my astonishment, a civilised discussion on twitter followed!

My critics (in the proper use of that word) did not dispute my assertion that I was right that the Act does not in truth change the existing law of Scotland in any significant way. I was particularly reassured that one of our most distinguished practicing lawyers, Roddy Dunlop KC, Dean of the Faculty of Advocates, agreed with my analysis of the law. You are always a bit scared why you make a bold assertion of the legal position if it then leads to some other lawyer disputing. in law, what you have said or, worse still, proving, by something you have overlooked, that you have just got it wrong. I have not got this wrong. The law will not be materially different come 1st April from that which it is today.

But Roddy, and others, made the perfectly reasonable point that I had overlooked a different point. That the Scottish Government and the Police, by creating the impression that the law is changing will encourage a lot of, at best, deluded and, at worst,  vexatious, complaints and that, for those complained about unjustifiably, "The process will be the punishment." That's not initially Roddy's phrase but it is one with which he'd sympathise. If Trans activists (for let's be honest that's the potential problem here) make repeated complaints against "gender critical" feminists then, supposedly, law abiding women will be put through the trauma of arrest and police interview before, finally after a period of worried uncertainty being told they hadn't actually broken the law. Who would blame them for concluding they didn't want to go through that again and in future keeping their perfectly legal opinions to themselves? 

I absolutely concede that to be a potential issue but I suspect more in the imagination than in reality. 

Now, this is not helped by the announcement that the Police that they will investigate "every" complaint, no matter how deranged. But, to be honest, I do not think they are telling the whole truth here. What does "every" complaint mean? No matter how nonsenical? Really? So they won't. All they'll at best do is that they'll write back thanking the complainant that no actual crime is involved here. And then what does investigate mean? To choose a very contemporary example. When it was suggested about Murdo Fraser that claiming that identifying as non binary was as sensible as identifying as a cat, constituted  a crime.  Will, on Monday, that bizarre accusation of him having broken the criminal law in the process, be in some way "investigated"?  Would be Murdo be hauled in and questioned under caution as to whether he said it. As he patently did.

Well, I strongly expect not. 

Because let's look at the actual law, rather than the hopes of one side of this debate or the fears of the other.

The law is in s.1(1) of the Criminal Justice (Scotland) Act 2016. 

1Power of a constable

(1)A constable may arrest a person without a warrant if the constable has reasonable grounds for suspecting that the person has committed or is committing an offence.

That's the law. All that is relevant here. 

If, and only if:

"A constable.......has reasonable grounds for suspecting that the person has committed an offence." 

All emphases above are mine. That involves a an objective analysis of the situation by the "constable". That some zoomer thinks it is a crime is not "reasonable grounds" for a trained police officer to agree. And has is also a word of significance. Not might have, has.

So, I'll make a confident prediction, nobody is going to be arrested for contravening s.4 of the Hate Crime Act. Ever. Because wrongful arrest is civilly actionable. 

And not inexpensive. The best case I can find as a precedent. Beck v The Chief Constable is from 2002. It turns on a habitual offender arrested and detained, she maintained illegally, for 7 hours. The Court held that she was not so illegally arrested or detained, so her appeal case failed but it was agreed by the Chief Constable that. had that been the case, appropriate compensation would have been £1000. In 2002 money, for a detention of a habitual offender, for 7 hours, in the middle of the night. So perhaps the same amount today for a law abiding citizen arrested for a shorter period , but in the middle of the day. And that's without evidence of actual psychological harm. Bearable expense, even with legal costs they'd be paying by Police Scotland but not if there are repeated claims.

Now, if I, a mere jobbing High Street lawyer, can work that out, you can bet the lawyers for Police Scotland will have worked that out. But I am certain that senior police officers, who are no idiots, knew that already.

So, if anybody is ever arrested for an alleged offence under s.4 of the Hate Crimes Act, unless they have clearly broken the wider criminal law, which I emphasise has not changed, then I will be astonished.

Now that does not remove entirely the fear of law abiding citizens they might be arrested. "What about Marion Miller?" they, not unreasonably, worry. There are any number of issues about that case that I strongly suspect will not be repeated. It involved the actions of an "activist" cop., I suspect with inadequate supervision and in the end involved the Crown concluding she had broken no law. "But, even then, I wouldn't want to go through that!" Well, either institutions learn lessons from their own errors or they don't. I'd be astonished if that does not include the Police. They genuinely do not want to face a slew of damages claims. 

But finally, a bit of practical advice. The Police cannot interview you as a suspect without arresting you. They generally don't tell you that in advance but once you are arrested they are obliged to tell you that you cannot be interviewed without a lawyer. This is generally accompanied by informal advice that the lawyer might take hours to attend, while you will remain in custody. And even then it might be just any lawyer. DO NOT GET IN TO THIS SITUATION! If the Police ask you in for a voluntary interview, get a lawyer there and then. You are entitled to absolutely free representation in these circumstances, irrespective of your own financial circumstance. That's the actual law. Leave it to the lawyer to agree a time for your interview. When the lawyer can be there from the start. That's standard current practice about actual crimes. I have suggested to For Women Scotland they get a list of suitable briefs. That's not me touting as I'm about to retire in a month but anybody knowing the territory will ask the Cops if, before you are interviewed, they are aware of them being potentially sued for wrongful arrest. And, helpfully, if they might want to run this past the Officer in charge before they proceed further.

On this point alone, I wish I wasn't retiring. I might make quite a few bob.

La Debacle.

When I was younger I was a massive admirer of the French Novelist Emile Zola. A great socialist and social reformer, he wrote a series of books about the plight of the working classes in 19th Century France, most of them based on a particular area of occupation. The most famous today are probably Germinal, about the coal industry, and La Bete Humaine, about the railways. The books are set in time during the latter stages of the French Second Empire and they cumulate in the one which is my favourite, La Debacle, which is about the Franco Prussian War which brought that Empire to a disastrous end, 

The book's narrative is mainly about the experience of ordinary soldiers, caught up in military events they can't understand. But it's underlying theme is that these events, through a combination of hubris and incompetence are in fact little better understood by their superiors. A grand metaphor for the second empire itself. Hence the book's title, a word which means exactly the same in French as in English.

I make these observations  as that word seems a perfect description for events surrounding The Hate Crime and Public Order Act 2021. It is, in fact neither the terrible threat to free speech which some maintain, nor a game changing intervention, as maintained by its supporters. For it in truth changes the law little if at all as to what might constitute criminal behavior. Yet it has somehow managed to create the impression that it does, for good or ill. That then has led to, let's put this kindly, confusion on the part of Police Scotland as to exactly how they should be responding, featuring the short lived and much missed appearance of the Hate Monster and a completely irrelevant diversion about them keeping records of people who have not broken any (current) law to avoid hurt feelings on the part of those who who assert they have.  

I'll start however with the history.

As with so many things in Scotland,  it starts with a football match. 

In March 2011, there was a game involving Rangers and Celtic. It was during and afterwards accompanied by widespread disorder prompted in no small part by the respective managers. Ally McCoist and Neil Lennon, nearly coming to blows on the touchline after three Rangers players were sent off. For the record, Celtic won 1-0. 

But First Minister Alex Salmond was then in his pomp and decided these events demanded a "summit" and, prompted I am sure in no small way at all by the forthcoming Scottish Parliamentary elections he then announced that "something must be done!.

That something turned out to be just about the most lamentable piece of legislation (and that's a high bar) ever passed by the Scottish Parliament, which was the The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. Which had as its high point (?), the criminalisation of singing songs on football terraces

After various legal travails, including a Sheriff describing the legislation as "mince", following the 2016 Scottish Election, there was no longer a majority for the terms of the Act. So by virtue of the bluntly named  The  Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Act 2018. it was indeed repealed. 

But it was repealed in its entirety although the objection was truly only to the "Offensive Behaviour at Football" part, not the "Threatening Communications" part. 

So the Government was left wondering if the second part, in modern circumstance, left a legal lacuna, that might need to be filled.

So they commissioned a judge (Lord Bracadale) to report on that matter. He concluded that it didn't. 

But they also asked him to consider whether wider reform of "Hate Crime" might be required to create any new criminal offences and that's where this all started to go wrong.

I will start with the words of his Lordship himself, having considered the existing law, and its terms,  he goes on to consider whether any additional offence of "stirring up" hate crime might be necessary and to observe (at section 5.15 of his report) .

I recognise that almost every case which could be prosecuted as a stirring up offence could also be prosecuted using a baseline offence and an aggravation: most, for example, could be prosecuted as threatening or abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 ( CJLSA), along with an aggravation.

I will come on to the word "aggravation" below. The "almost" is my emphasis for the moment, because his Lordship then goes on to demonstrate not a single example of something not caught by that almost. 

With that we go to the terms of the self same s.38. 

38Threatening or abusive behaviour

(1)A person (“A”) commits an offence if—

(a)A behaves in a threatening or abusive manner,

(b)the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c)A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

(2)It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.

(3)Subsection (1) applies to—

(a)behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and

(b)behaviour consisting of—

(i)a single act, or

(ii)a course of conduct.

(4)A person guilty of an offence under subsection (1) is liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or

(b)on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

As my readers will overwhelmingly know. I am a great man for the Twitter. But I remain aware that what I do there is no different from what I might do on the street. If I post, in sincerity. there, that all people from Greenock should be tracked down and killed, then I have broken the law. Quite rightly. For my behaviour would be:

a) threatening 

b) likely to cause a reasonable person fear and alarm and 

c) intended or reckless as to whether it caused actual fear and alarm.

I don't want to write forever, so, take it from me, it would make no difference that I'd  expressed that sentiment (only)  on twitter rather than from a soap box on Paisley High Street.

But at this point I have to deal with the issue of "aggravated" offences.

An aggravation is something tacked on to a crime by Act of Parliament to suggest it is "aggravated" in some way. Currently the most common aggravation, by some way, is that the crime was aggravated by it having been committed against your partner or former partner in terms of the Domestic Abuse (Scotland) Act 2018. Curiously however that does not feature at all in the Hate Crime Act. 

The other aggravations however relate to various "protected" characteristics. At the time of the Bracadale report these were, in summary, Race (including nationality), Religion, Disability, Sexual Orientation or transgender identity.

Now, lawyers don't like aggravations. To explain why briefly, by reference to my own earlier example: if on my hypothetical soapbox I call not for all people from Greenock to be rounded up and killed but rather for all Jehovah's witnesses to be so treated, then, in the latter case alone, I have committed  an aggravated offence (contravention of s.38 infra). But I'd defy anybody to say these matters are not of equal seriousness. or to suggest they'd should involve differential sentencing.

Courts can sort these things out. In relation perhaps to a more likely crime, assault in a pub argument, courts do not need politicians to tell them that this is a more serious crime if committed against a man in a wheelchair rather than committed against a young fit man with the potential to fight back.  

But we are where we are on aggravations. And they do, to be fair, allow, through criminal record keeping, the collection of statistics on the commission of crime against people with protected characteristics and they would be a factor in sentencing on subsequent offending involving the same aggravation.

But I am getting slightly off the point here. For despite his own statement that stirring up hatred is already a crime (I would suggest not just in respect of protected characteristics) Lord Bracadale goes on to suggest there should nonetheless be a new crime of stirring up hatred. Why did he do this? It is difficult to avoid the conclusion that, having told the Scottish Government that even the less controversial parts of the Offensive Behaviour legislation did not require to be reinstated, he wanted to throw them a bone.

Now, the bone having been thrown, it was then unfortunately then caught by an exceptionally stupid dog.

For, Bracadale having reported on 31st May 2018, on 26th June 2018 none other than Humza Yousaf, became Justice Secretary. And if there is anything to be learned about Useless, it is that he likes to give the impression of action.

So he announced that he was going to legislate. He didn't, as you or I, dear reader, might have, think to go back to Bracadale and ask for some elucidation on his use of the word "almost" that I refer to above. In the process avoiding the use  of a lot of Parliamentary time and avoiding all of the current controversy. But then again, in addition to his stupidity, one other feature of Useless is that he loves publicity. He (he alone!) was going to make threatening and hateful behavior towards minorities against the law! Although (cough) it was already against the law.

I will skip the legislative process that followed except that it demonstrated a Minister hopelessly out of his depth and ultimately forced to accept a whole series of Opposition amendments, marshalled by the estimable Convener of the Justice Committee, Professor Adam Tompkins, to avoid pitfalls in the original Bill that had entirely passed the Minister by until drawn to his attention

But let us look at what emerged. In terms of almost all of the legislation it simply brings much of the existing law together in one place. It adds variation in sex characteristics (whatever that is) and somewhat bizarrely age into the aggravated categories. To be fair, these come from Bracadale but if you asked just about anybody whether they'd regard assaulting somebody with the words "take that you old bastard" as being more serious than with the use of the words "take that you fat bastard", then I suspect you'd get a sceptical response. 

Anyway, here it is, the source of all the controversy, s.4.

4Offences of stirring up hatred

(1)A person commits an offence if—

(a)the person—

(i)behaves in a manner that a reasonable person would consider to be threatening, abusive or insulting, or

(ii)communicates to another person material that a reasonable person would consider to be threatening, abusive or insulting, and

(b)either—

(i)in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins, or

(ii)a reasonable person would consider the behaviour or the communication of the material to be likely to result in hatred being stirred up against such a group.

(2)A person commits an offence if—

(a)the person—

(i)behaves in a manner that a reasonable person would consider to be threatening or abusive, or

(ii)communicates to another person material that a reasonable person would consider to be threatening or abusive, and

(b)in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to a characteristic mentioned in subsection (3).

(3)The characteristics are—

(a)age,

(b)disability,

(c)religion or, in the case of a social or cultural group, perceived religious affiliation,

(d)sexual orientation,

(e)transgender identity,

(f)variations in sex characteristics.

(4)It is a defence for a person charged with an offence under this section to show that the behaviour or the communication of the material was, in the particular circumstances, reasonable.

(5)For the purposes of subsection (4), in determining whether behaviour or communication was reasonable, particular regard must be had to the importance of the right to freedom of expression by virtue of Article 10 of the European Convention on Human Rights, including the general principle that the right applies to the expression of information or ideas that offend, shock or disturb.

(6)For the purposes of subsection (4), it is shown that the behaviour or the communication of the material was, in the particular circumstances, reasonable if—

(a)evidence adduced is enough to raise an issue as to whether that is the case, and

(b)the prosecution does not prove beyond reasonable doubt that it is not the case.

(7)For the purposes of subsections (1)(a)(i) and (2)(a)(i), a person's behaviour—

(a)includes behaviour of any kind and, in particular, things that the person says, or otherwise communicates, as well as things that the person does,

(b)may consist of—

(i)a single act, or

(ii)a course of conduct.

(8)For the purposes of subsections (1)(a)(ii) and (2)(a)(ii), the ways in which a person may communicate material to another person are by—

(a)displaying, publishing or distributing the material,

(b)giving, sending, showing or playing the material to another person,

(c)making the material available to another person in any other way.

(9)A person who commits an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), or

(b)on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine (or both).

Now, if you've been paying attention you will note the similarity to the wording of s,38 of The Criminal Justice and Licensing Act that I refer to above. Indeed some of it is word for word the same. Crucially, any criminalised behaviour must be threatening or abusive except for racist or ethnic origin crimes  which can cross the line of criminality by merely being insulting (and/or threatening or abusive). 

So what is all the fuss about. Well, firstly, its because Useless is insisting he has materially changed the law, although he hasn't. People are nonetheless taking him at his word. 

But, secondly, so are the Police. If the Scottish Parliament and the First Minister are telling them they have changed the law then they are assuming they must have. But the Police can't work out how. That's because they haven't. To use their own notorious training example of "Jo" suggesting all trans people should be sent to the gas chamber, if "Jo" did that on 31st March it would be as much a crime as if she did it on 1st April, And rightly so. It ticks every box of the existing s.38. And would be an aggravated offence.

The other mistake they have made is to suggest that they will investigate every complaint as opposed to every well founded complaint. If I try to report my neighbour for having commented on the fact I am going bald and thus demonstrated prejudice based on age, I shouldn't be told the Police will look into it. I should be told there and then that there is no crime here and, if I persist, warned of the potential crime of Wasting the Time of the Police. That's eventually where we'll end up. Even Engender is warning people that being "misgendered" is not to become a crime, not that that will deter some people for reporting it as such. 

So that's what's going to happen. Nothing. After a short period of sound and fury, nothing is going to change. Much as some fear and others hope. 

That's why it is a debacle.