The SNP can be a bit creepy. I say this not because of any allergy to the idea of Scottish independence, or dislike of those who run the party, but because, when it comes to civil liberties, the party too often behaves in a creepy way.
Nicola Sturgeon’s government is piloting a Hate Crime Bill through parliament which will bring all existing offences relating to disability, race, religion, sexual orientation and transgender identity under a single piece of legislation. The Bill has been wildly controversial, with a broad front of critics warning of dark consequences for freedom of speech.
Ministers have already been forced to trim the Bill of some of its more adventurous proposals, such as the targeting of behaviour “likely” to stir up hatred, regardless of intent. On 21 November, the Justice Secretary Humza Yousaf said he would also scrap a section on “offences” committed during public performances or plays, and strengthen protections around religious expression.
Perhaps the most symbolically egregious aspect of the legislation is the planned removal of the “dwelling defence”, which protects people in the privacy of their own home. Inevitably, this has led to predictions of a Stasi-like environment in which woke kids inform on unwoke parents who let slip a loose opinion around the dinner table. Yousaf insists, in a slightly odd formulation, that “it’s not, for me, a defence that simply because this happened in your home, where you might have ten people, 15 people… you might have a mansion and have 50 people round, and you’re stirring up that kind of hatred.” Inverness mansion-owners, shut down those KKK meetings.
Few question the importance of dealing with the hate crimes themselves, or indeed that the government is well meaning. But its good intentions weren’t in doubt on previous occasions either, and then, as now, good intentions were not enough.
There was, for example, the aborted plan to create a “named person” – a state-appointed individual such as a teacher or health visitor – to monitor the welfare of every individual Scottish child. On one view this was a compassionate measure that could reduce child abuse. But it was also seen as a gross and unnecessary invasion of family privacy – after the UK Supreme Court ruled aspects of the proposal illegal, and amid voter discontent, it was dropped last year.
There was the Offensive Behaviour at Football Act of 2012, which was a measure to tackle sectarianism and which covered not just those attending matches, but also supporters travelling to and from games, those watching in a pub, and those responsible for social media abuse. Critics claimed the Act treated all football fans as malevolent thugs, and MSPs voted to repeal it in 2018.
There was the decision quietly taken by Sturgeon earlier this year to shelve her liberalisation of gender-recognition laws, after the issue caused a major split in the SNP and angered many women voters. The First Minister says she intends to address the issue again after the Holyrood election in May 2021, guaranteeing a divisive and hostile debate within the governing party.
All this, and more. The Government tried in April this year to introduce emergency extensions to Freedom of Information deadlines during the Covid pandemic – there was even the suggestion of a temporary suspension – but was blocked by MSPs. A proposal to scrap the requirement for corroboration in court – that is, at least two sources of evidence – in the hope of increasing conviction rates for rape and other crimes that occur in private, was also abandoned after heavy opposition.
Meanwhile, the inquiry into the SNP’s handling of the sexual assault complaints against Alex Salmond has accused the party of refusing to hand over requested documents and evidence. The Conservatives are threatening to take ministers to court in order to access the requested materials.
It all amounts to a confusing picture: of a party and government that is both reckless with civil liberties and aggressively protective of its own privacy; of an administration that doesn’t think through issues properly before lunging into the fray; and of a movement that perhaps has far too much faith in its own unimpeachable goodness and moral superiority. There is also the material danger that a government seen as crying wolf too often simply undermines its own credibility when imposing major Covid-related lockdowns, travel bans and office and shop closures.
What exactly is the SNP’s philosophy of the state? What are the values that underwrite its judgements around personal freedoms? Is the party betrayed by shallow intellectual underpinnings?
Unlike Labour and the Conservatives, the SNP does not have decades of evolved thought, a rich tapestry of precedent and internal discussion, to fall back on when thinking of liberty – after all, the only liberty it was interested in for many years was Scotland’s from the rest of the UK. The movement for independence is made up of individuals from every side of the political and philosophical debate, from libertarians to communists and everything in between. Many of its politicians are similarly driven by the independence-impulse before matters of conscience and morality. In historical terms, it remains relatively new to the challenges of governing.
This seems to me the most convincing explanation for the SNP’s curiously unmoored approach to civil liberties – it has nothing to moor itself to. It used to be a right-wing party and is now a left-wing party. It does what it needs to do to realise its founding purpose, as it always has done. Expediency is its key value. And like other parties that view the nation as the highest expression of identity, it too often sees the state as superior to the private sphere, and as an institution that is entitled to improve its people for their own good. It may take a relatively benign form, but it’s there: personal freedom is contingent.
This will doubtless be viewed as unfair by Sturgeon and her cabinet colleagues, who are for the most part decent people and good social democrats. But something is surely awry in their internal judgements and external actions in areas involving freedom of thought and expression, when measuring personal privacy against the rights of the state. It’s not easy to find philosophers of stature in the modern SNP.
This drift has consequences. The hate crime bill, for example, has managed to create an extraordinary and unlikely coalition of opposition. The Scottish Police Federation says its officers would be forced to “police what people think or feel”. The Humanist Society says the bill would have “a significant chilling effect on free expression”. The Faculty of Advocates worries about “unintended consequences” for free speech. The SNP-supporting novelist Val McDermid and the actress Elaine C Smith have signed an open letter arguing the “the right to critique ideas, philosophical, religious and other must be protected to allow an artistic and democratic society to flourish”.
In the event of independence, of course, all of this may seem largely irrelevant, merely a precursor to bigger questions. But for now Scotland needs to be governed as it is, and it needs to be governed better.