2007 - 2022

Fear and Loathing at the Holyrood Committee Stage

A feature of this last year, despite the fact that many will remember it as the year of Black Lives Matter, is the kickback against change, the reaction to racism being high on the news agenda. Those of an “all lives matter” disposition were clearly enraged that society, the media, and the arts were reflecting on, and addressing issues related to racism, discrimination and privilege. Of course this isn’t new or unique to this year. Every advance in rights for minorities, every move to combat bigotry and prejudice has been met with resistance. Against this backdrop, amid this atmosphere came the Scottish Governments Hate Crime Bill, now reaching the next stage of its progression through Parliament.

Essentially the Bill is an attempt to tidy up existing laws, to bring the current laws on hate crime up-to-date and fit for purpose.  The focus for some critics of the bill has been the “stirring up” element. This would equalise hate crime by applying the existing crime of ‘stirring up racial hatred’ to acts against other minorities and protected categories.

This criticism has ranged from legal contributions designed to tighten up wording of the initial draft of the bill, to alt-right “free speech” advocates objecting to limits on their offensive actions and words.

Now, nothing about this is unusual. This is how legislation develops, initial proposals move through the processes, being tightened and improved by consulting with experts in the field and those with lived experience of the issues. Compromises are made at each stage. While legal contributions have been considered and have already changed much of the phrasing and wording, other ‘bad actors’ have used the same stages of the bill for a familiar cry of free speech, a broad cape that has allowed the far right and alt-right into the debate. We would hear those people try to hitch a ride on genuine concerns from the legal profession on the practical implications and delivery of the bill as it was first proposed. Their motivations for disrupting the bill were and still are, I am no doubt, different.


pic – Francis Lopez

From an arts perspective one theme that started to emerge was how this would restrict artistic freedom of expression. Scare stories emerged on social media, repeated on mainstream news and press, that this would be a draconian sledge hammer that would crush free speech. I watched an online “debate” by a radio station that had accepted this line. Expert opinions, from people with no legal or legislative background, suggested that writers and directors in theatre could be prosecuted if they had a racist character in their play, even actors could be guilty of a crime for playing that character. We were told, without challenge, by speaker after speaker, comment after comment, that literally anything we write could be deemed to be “stirring up hatred”, our prisons would be full of poets and theatre-makers.

This was familiar to me, I had heard it before, many times in different forms. In fact artists were already subject to this perceived limitation. The possibility of being prosecuted for “acts intended or likely to stir up racial hatred” has been there since the Public Order Act of 1986. If extending this to other protected characteristics was going to lead to a watershed of new censorship then we would surely have had evidence of this being the case re Race Hate Crime for over 30 years. Where are these writers, artists, actors, prosecuted for “stirring up”? Of course, there are none. When the Act became law the same arguments were made at the time. And the arguments, from the right, were the same as now. “We won’t be allowed to say this anymore” “It’s an attack on free speech”.

And, often, those writing or broadcasting about the threat to their freedom of speech are people with the most freedoms and biggest platforms for their speech and expression.

In recent years we have seen this re immigration, and islamophobia in particular. Populist propaganda that “you’re not allowed to talk about immigration” was clearly countered by the fact that everyone was talking about it, on every TV show and every radio channel, in every newspaper and blog. “I’m not allowed to say this on TV” says the man, on TV, saying it again. Nigel Farage appeared on BBC’s Question Time more often than any other panellist in the show’s history. Question Time, famously, invited Nick Griffin, leader of the neo-Nazi BNP, to their panel, no doubt for a sense of balance.

We often hear about ‘Cancel Culture’ but when we do hear about it, it’s often about a relatively small amount of cases worldwide involving a white academic or writer being uninvited or not being invited to an event. What we don’t hear about are the minorities who don’t get asked in the first place, who are cancelled before the invites are even posted. Free speech on University campuses is important. But the handful of high profile cases that capture the attention of the press are not where the very real problem lies. Research by SAOS University of London found that Muslim students were modifying their behaviour because of the Government’s Prevent strategy, for fear of being stigmatised, labelled as extremist or subjected to discrimination.  The Office for Students reported that over 60,000 events and speakers were considered under Prevent restrictions in 2018, with more than 2,000 having conditions attached before going ahead.

Reaction to change, as I have said, isn’t new. Each generation faces changes that they struggle to understand, that they relate to their own worldview and perception of some imagined ‘better time’, when things were clearer. One of the constant refrains from the free speech brigade is to look back at the past and state “you wouldn’t get away with that now”. Of course that’s true, there are many things we watched on TV growing up that quite rightly would never be shown now. The Black and White Minstrel Show ran until 1978 amid a TV schedule riddled with racial stereotypes and blatantly racist sitcoms. Recently we have seen controversy over shows being “cancelled” when, in fact, it was simply a choice by broadcasters to no longer highlight historical shows that they now think are problematic. Not banned, not burned in woke cauldrons, just not broadcast. If you are a big fan of ‘blackface’ or stereotypical portrayals of “Johnny Foreigner” you can still go buy the DVD.

The imagined ‘golden age’ of freedom of expression was, in fact, only free to some. In 1977, moral campaigner Mary Whitehouse took the magazine Gay News to court under the blasphemy laws that existed at the time (blasphemous libel was abolished as an offence in 2008 – another change that caused the alt-right to lose it). The “offence” was a poem by James Kirkup “The Love That Dares to Speak His Name”. Gay News and their publisher Denis Lemon were found guilty.  It would be 1994 before the first pre-watershed lesbian kiss, on Channel 4’s Soap Brookside, was screened. Can you imagine a world where love between two women was deemed unacceptable and had never been represented on mainstream television?

These days, the content that reaches TV screens is far more challenging, far more controversial and expresses far more opinions and views than this imagined past. Would Frankie Boyle’s New World Order or Black Mirror have been broadcast back then? Well, no they would have been deemed to be far beyond the acceptable limits. As would I May Destroy You and many of the current dramas that deal with real issues. No, the claim that there is increasing censorship, that “the woke” are policing our every word and every artists freedom to create, just doesn’t stand up to any serious scrutiny.

The fact that the Justice Minister is a person of colour does mean that the extreme right and racists will be drawn to this debate, not something he is unused to – but it’s not just usual suspects. Artists that I know, and would not have expected to join in with this faux free speech rally, have got onboard with it.

There is nothing to worry about for most artists in the Scottish Government’s new bill. Of course, if your ‘art’ is a Nazi dog on Youtube or a transphobic poem then maybe it’s your own perspective that is wrong and I can see why you would resist change.

The problem, to me, in much of this is what people see as their world now. Exacerbated by COVID lockdowns, Twitter is where many people think the world is played out. For any crime to be prosecuted, there is a procedure, there are checks and balances. It’s not about whether someone calls you a racist on social media. A criminal offence would need evidence; would need the Crown Office to deem it in the public interest to bring it to court; would mean a trial and judgement by a jury of your peers. We have the evidence of the existing laws on “stirring up racial hatred”, if these new laws led to your own art being prosecuted it would it mean that it passed through the scrutiny that no other play or book has managed to breach since “stirring up racial hatred” became an offence. It would mean that your TV script was more problematic than the most racist TV show in the last 35 years (which didn’t make it to court or result in a prosecution). If you’re not planning to write that script, then you should be fine.


Comments (29)

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  1. Cygnet says:

    Hear, hear.

  2. MacNaughton says:

    Fantastic article Jim, on a day where there is another pro indie blog promoting hate against the trans community. It is utterly disgraceful what we are seeing on Wing Over Scotland in relation to this issue, where they are stirring up real hatred it seems to me.

    All of the arguments against the trans community were also used back in the day against the gay community which basically comes down to the idea that such people are deviant and are not to be trusted. And you cannot fail to pass a piece of legislation because the possibility exists that someone, somewhere just might abuse it…

    For anybody unsure what to make of this issue, I recommend Owen Bennet Jones’ interview with the very wise Judith Butler on Owen’s YouTube channel. Judith talks with a calmness about the whole issue, and those for and against self-identification , with the utmost wisdom and respect. Including JK Rowlling.

    By the way, I just saw on the news bulletin here in Spain that the Spanish govt has the same legislation in the pipeline as the SNP are proposing. Remarakbly, all the main parties here are behind it.

    As people like Gerry Hassan have pointed out, Scotland isn’t half as progressive as it likes to think it is….

    1. Marga says:

      As we say in Spain, ” Hecha la ley, hecha la trampa”, in other words many laws have built in loopholes and are mainly decorative. Didn’t know about this one, though.

      Another example of wishful thinking is calling the current Spanish government the most progressive in history. It’s mainly socialist, so you get the idea…

    2. MacNaughton says:

      Sorry, not Owen Bennett Jones, just plain old Owen Jones.
      Here is the interview with Judith Butler whose insights really helped me understand the issue much better:

  3. seonaidh says:

    Well said.

  4. Tom Ultuous says:

    What we really need is a ‘Fascist lives don’t matter’ movement. Their sole objectives in life seem to be to make the lives of people who are racially / religiously different to them a misery and to aid their rulers in making the lives of everyone else as miserable as their own.

    1. Tom Ultuous says:

      Should have wrote

      What we really need is a ‘Fascist lives don’t matter’ movement. Their sole objectives in life seem to be to make the lives of people who are racially / religiously different to them a misery and to elect a govt who will make the lives of everyone else as miserable as their own.

  5. mark says:

    Dear Jim, you really are stupid. Go and live in China, take Humza with you, he can complain to them all about how chinese people dominate the business and political landscape while enjoying the censorship. This has got to be the most badly written propaganda piece ever published on Bellacaledonia.

  6. gehetacicl says:

    Hm, Re, the comparison between the movement to repeal Section 28 and the movement to pass the present bill, was repealing Section 28 raising concern among the professional bodies of lawyers, police and journalists? Was repealing section 28 raising concern among the likes of Joanna Cherry? Err, no, as those people were precisely the ones campaigning to repeal section 28.

    1. Jim Monaghan says:

      As I point out, the legal professions suggestions and amendments come from a different place then the so called “free speech” advocates. I am not really sure what Joanna Cherry has to do with this, this piece is about how it affects the arts and some artists reactions to the proposed bill.


    Marvellous … great to read a sensible, and informative, attitude in a climate of opinionated, misinformed reactionary pish.

    The sensationalism that is far-too often perpetrated when this subject is raised clouds a serious issue that has been triviliased whilst simultaneously exaggerated … n o mean feat

    Well said, Jim … you nailed it!!

    Stu Who?

  8. SleepingDog says:

    There is a problem with the “arts perspective” in the UK, though, is there not, which calls into question their fitness to consider privilege and discrimination? As the Sutton Trust report Elitist Britain 2019 says:
    “However, access across the creative industries is not equal for all. Just 13% of those working in publishing, 12% of those in film, TV and radio, and 18% in music, performing and visual arts come from working class origins.”
    And a lot of these privileged people doing jobs they apparently love have been very vocal about pandemic handouts to keep them from having to do something else they don’t like as much. I was taken aback by a BBC Scotland Bitesize programme on getting creative (for secondary schools) on just how indulged their young artist role-models appeared to be, each with their own capacitious studio, time and resources. Meanwhile the state primary kids were making musical instruments out of salvage.

    According to a recent BBC documentary on the ‘polish’ that gives the privately-educated the edge in getting those sought-after jobs, while the BBC had attained a better racial/ethnic balance, it had allegedly achieved this by recruiting privately-educated minorities. I think this is also something (privately-educated BBC signing) George the Poet picks up on.

    1. Jim Monaghan says:

      An excellent point Sleepingdog. But my “arts perspective” is as an artist who IS working class and didnt attend any university, never mind an elite one.

      1. SleepingDog says:

        @Jim Monaghan, I remembered this exchange when I watched episode 5 of Adam Curtis’ Can’t Get You Out of My Head. At around 19:35, he says (reflecting on Britain at the start of the 20th Century, a hundred years ago):
        “Trapped by what they saw as a danger below and corruption above, the middle classes retreated. They turned away into another, imaginary version of England, where there were none of these threats. It was invented for them by a whole generation of writers, artists and musicians who, in an act of collective imagination, created a complete dream image of England’s past… one that still haunts the country today.”
        I feel that this is a more accurate and evidence-based assessment of the contribution of British artists than the typically beatified generalism found in Bella.

        And if those of working-class origins are significantly under-represented in the creative industries, those of underclasses are perishingly less evident (and by underclasses, I mean people of the abyss, the long-term sick and unemployed, the geographically and culturally marginalised and so forth).

        1. Jim Monaghan says:

          I agree in general with most of your points although not sure if we beatify british artists. As for “under class” yes access to arts especially in education is blocked to people. But, again, it probably does apply to me. Long periods of unemployment and disability, from a family of long-term unemployment and disability, in a disadvantaged rural area, bringing up a disabled child as a lone-parent. So, I believe I am writing from the perspective that you are describing. But I am not sure it changes any of my points about how this bill would affect artists.

  9. Niemand says:

    A useful perspective but a couple of major points of contention for me:

    1) ‘We often hear about ‘Cancel Culture’ but when we do hear about it, it’s often about a relatively small amount of cases worldwide involving a white academic or writer being uninvited or not being invited to an event. What we don’t hear about are the minorities who don’t get asked in the first place, who are cancelled before the invites are even posted.’

    This is misrepresentation of cancel culture, and also whataboutery. Campus speakers getting uninvited is a pretty insignificant aspect of the phenomenon (but one that gets a lot of publicity). People losing their jobs, being ostracised and severely abused online, not getting work, getting books cancelled and generally being silenced by self censorship for fear of repercussions is the important stuff. It has nothing to do with what colour someone is – is it less egregious to ‘cancel’ someone because they are white? As for minorities not getting invited to things in the first place – that is not ‘cancelling’ in the same sense at all and is a totally different problem and unconnected.

    2) ‘There is nothing to worry about for most artists in the Scottish Government’s new bill. Of course, if your ‘art’ is a Nazi dog on Youtube or a transphobic poem then maybe it’s your own perspective that is wrong’.

    But there is the rub – ‘a transphobic poem’. Who decides what is transphobic? This the really important bit and by codifying such things in law it requires agreement on that and right now that is far from the case (though some seem to assume it is all decided), so the concern that the new law would enshrine a definition that potentially criminalises a huge number of people is very real and is indeed ‘worrying’.

    1. Jim Monaghan says:

      If I can address your points one by one
      1) Yes, its true that cancel culture is damaging to academia and to individuals. But my comparison was about scale. SIXTY THOUSAND people and events in one year in one country were subject to Govt scrutiny from a strategy that deems Muslims to be a problem. Over TWO THOUSAND events only went ahead after Govt restrictions were applied. I am not saying that others being cancelled isnt a problem, I am saying that its is miniscule in comparison to the restrictions on free speech to Muslim students in the UK. We dont hear about it because the media is mostly white privileged people who are appalled to see it happen to one of their own yet are totally unaware that this happens to thousands of Muslim students every day.
      2) As I pointed out, its a long and hard road to “criminalise” anyone even when something is defined in law. I think I was clear in saying that we have actual evidence to be able to point to the implications. Can you point to an artist or piece of art prosecuted under “stirring up racial hatred” since that became law in 1986?

      1. SleepingDog says:

        @Jim Monaghan, you say Muslim students, but if this article is accurate, very young children are being targeted under Prevent too, in large numbers, on what could be extremely flimsy justifications, causing major distress:
        “figures obtained under freedom of information laws by the Observer reveal that the four-year-old is one of 624 under-sixes referred to Prevent between 2016 and 2019 . During the same period, 1,405 children between the ages of six and nine were also referred to the scheme.”

        1. Jim Monaghan says:

          I was specifically referring to university campuses, Prevent has a terrible effect across Society but the numbers quoted were about universities, not 4 y-olds.

      2. Niemand says:

        Thanks for your reply Jim, it’s appreciated – not many authors here engage with the comments, especially critical ones.

        I think we are discussing this at cross-purposes to some extent which is mostly my fault as I have expanded the discussion beyond the creative arts sector.

        I take the point about scale though I wonder about that ‘miniscule’ characterisation. But this is where is gets tricky as one of the things about so-called cancel culture is the knock-on effect of self-censorship which affects everyone, no matter what ethnicity. If we apply that to the second point I wonder how much that will (indeed has) come into play especially regarding comedy that seeks to be irreverent even deliberately bigoted but for comedic effect. I can say without doubt that I now censor myself far more than I ever did simply for fear of being ‘called out’, even though I would prefer to be able to say what I think.

        I regard myself as a pretty progressive person, but not in everything as is it currently framed. So much of the calling out at the moment is not of obviously reactionary types but of other progressive people but who are apparently not progressive enough. This strikes me as wholly counter-productive if not plain wrong. Someone on here described this as akin to the stupid factionalism in the Scottish Christian church that sought to cast those with subtle doctrinal differences as in hoc with the Devil!

        Regarding artists being prosecuted for stirring up racial hatred (or indeed some other form potentially illegal bigotry), you’re right I can’t name anyone (that isn’t an out and out self-confessed bigot, and even then) but this begs the question to me of what the point is exactly then? Why enshrine something in law (and the draft bill contains quite some detail about who is liable and why) that will never lead to conviction but may well lead to damaging and traumatic prosecution (or even just accusation and thus a means to denigrate an artist thenceforth)? It just becomes damaging window dressing – a kind of threat deliberately designed to have a chilling effect.

        1. Jim Monaghan says:

          But it DOES lead to convictions. My point is that the scare stories re the Arts are exaggerated. here are two examples from one month in 2019. What I am saying is that it will not lead to convictions of artists discussing issues in their work, as was suggested by some.
          https://www.cps.gov.uk/cps/news/neo-nazi-jailed-stirring-racial-hatred https://www.bbc.co.uk/news/uk-england-tyne-49853039

          1. Niemand says:

            Yes but I was referring only to artistic stuff in that last bit I wrote, not general racists spouting off.

    2. SleepingDog says:

      @Niemand, I think your initial comment confuses many different things. There are questions of selectivity (a natural feature of competing for scare resources), quality (both subjective and objective), politeness (which inevitably involves self-censoring), relative scarcity (proponents of mainstream views are essentially less valuable if they are merely articulating repetitions) and employment terms and conditions (whereby certain behaviours are regulated and if you break the rules you can often expect some kind of disciplinary action). Surely no-one is entitled to a publishing deal? Who exactly is getting sacked? Maybe a lot of people should lose their current jobs if there was to be a fair employment environment, to make way for worthier (and sometimes needier) candidates, and jobs themselves are inherently unequal in value. Cultural norms are policed; there is usually some ethical imperative that justifies condemning (speaking out against or preventing) ‘bad’ behaviour. Who exactly is suffering in the UK because they are white? What is the bigger picture here?

      I think you also mix up individual grievances with aggregate effects. Government policies may regulate society but are not intended to produce individual justice in all cases (hence more localised mechanisms for redress). And there is always the danger of overestimating population frequencies on the basis of anecdotal evidence or a few loud/recent voices. When we think about decolonisation, for example, it is worth considering John Newsinger’s words in the introduction to the 2013 edition of The Blood Never Dried: A People’s History of the British Empire:
      “The problem is not that there is too much anti-imperial history, but that there is not enough.” Imperialists bemoan non-existent anti-imperialist historical consensus, when imperialism dominates and is celebrated (also US imperialism). And it may be worth looking at another country’s coming-to-terms with imperial criticism in case our own experience is too clouded by proximity.

      You say you regard yourself as a pretty progressive person, but surely in that case you would support some laws that do criminalise widely-practised behaviours, like the recent Scottish legal ruling outlawing the defence of ‘reasonable chastisement’ in cases of child assault?
      Surely to be progressive, you have to reflect upon and update your beliefs and behaviours when confronted by better reasons and practices, and new or more reliable information?

      1. Niemand says:

        Or not update your beliefs as the case may be because what you find instead is it would be a regressive update, not a progressive one at all, which you therefore reject. There is no ‘directive’ from the Progressive God that one must follow regardless (though of course, I am saying there kind of is and that is a problem, as it is basically authoritarianism which is not progressive at all).

        This stuff is always difficult to argue because this whole notion of cancelling is very much about an accumulation of anecdotal incidents (and there are very many but even posting a few will, in an important sense, ‘prove’ nothing other than those anecdotes happened). Cultural norms are indeed policed and I am saying without embarrassment, I am finding some of the newer cultural norms out-of-order and I am far from alone in thinking that. Therefore if someone is sacked and refused a book deal, has an exhibition cancelled etc etc on the strength of them, it is wrong in my opinion. They have no ‘right’ to a deal or exhibition or whatever but that isn’t the point – the point is the reasons they don’t have. You would argue differently because presumably you would agree with the new norms and perhaps some of those sackings and loss of work. So there is no ‘confusion’ on my part, just a different opinion about some of the current newer thinking.

        I don’t claim anyone is suffering because someone is white but I was responding to Jim’s mention of *white* ‘cancelled’ academics as if their whiteness made them less deserving of scrutiny in terms of what happened to them and why.

        You make an interesting point about ‘individual grievances’ as opposed to ‘aggregate effects’ though I’m not quite sure how to take it in terms of what I am saying. I do care about justice for individuals as well as groups and there can be conflict there to be sure and though it is difficult to take, sometimes individual ‘collateral damage’ is inevitable. And yes very loud voices (e.g social media) can really distort the picture (and on both sides of whatever the current argument is). The difficulty is how to get a truer picture but also what / who exactly is representing the ‘established’ view any more. This is much easier with the the arguments about colonialism and its legacy, but much less so about other things (Brexit, trans rights, and indeed the hate crime bill, and freedom of speech debates generally: is not Nicola Sturgeon and the SNP, the establishment?)

        1. SleepingDog says:

          @Niemand, yes, a lot of contentious/new ideas may be intentionally clothed in the style of ideas which have previously successfully changed society. This might in some cases give a superficially false sense of the nature of their arguments. Because human rights have been successfully argued for, some people use the language of human rights to argue for things which may on closer inspection be demands for privileges, or public obedience to a private will, or use a different model of humans (say, requiring a non-physical component like a soul).

          I used ‘progressive’ in a loose way, my intention was to suggest ideas which had been milled through the collective intelligence to rationalise them (removing inconsistencies, absurdities, superstitions and biases), as well as ideas which step back from the kinds of planet-destroying insanity which have been all too prevalent. Valuing nature is a very old idea, of course, but modern environmentalism adds valuable insights that few ancient cultures could likely have arrived at, let alone assembled.

          My view is that the various humanist ideologies are becoming rather tattered these days. The human-first-and-centre worldview has proved to be extraordinarily harmful. To give one example of aggregate versus individual cases, someone might put forward a claim about reproductive rights, in the sense that humans have a right to reproduce themselves (have children, perhaps as many children as they wanted/were capable of, by technological means if necessary or desirable). Yet the footprint of the current human population is (in conjunction with various environmental damages and collapses) threatening the basis of ecosystems around the globe. The aggregate good should, I would argue, outweigh unlimited individual reproduction; so there cannot be a right that if everyone exercised it would outweigh this aggregate good. Some non-rights compromise approach could be sought, and the language of rights abandoned in this case.

        2. Jim Monaghan says:

          Niemand, I was not suggesting that whiteness gave cases less legitimacy. I was comparing the press coverage to that of the huge number of cases that affect mainly muslim students and academics. We hear about a lecturer being cancelled in the USA before we hear about the 2,000 cases under the prevent act that are restricted or banned each year in the UK. Our media is racist, they reflect the concerns of a racist society. We dont read about muslim students and academics being cancelled or silenced in our own UK universities, despite over 5,000 cases per month being considered.

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