Exclusive:How I discovered I'd been secretly found guilty of 'hate' by Police Scotland – Murdo Fraser

Ever keen to promote a fellow columnist, even one with a different political outlook to my own, I shared the article on social media, adding what was intended as a tongue-in-cheek comment (albeit one which had an underlying serious point) that choosing to identify as non-binary was as valid as choosing to identify as a cat.

Now, I should say that I love cats. For that matter, I have nothing whatsoever against people who identify as non-binary. I’m just not sure that in either case they need a specific action plan. And, like Susan, I am concerned that there are real threats to women and girls from admitting men to female-only spaces, which is one potential consequence of recognising in law a non-binary category. But, in a liberal democracy, these are surely matters of legitimate public debate, both for politicians and newspaper columnists?

Ethical standards

Or so I thought. It seems that Police Scotland take a different view. An individual – who I will not name but I know to be a trans rights activist – reported my tweet to the police as a hate crime. It was duly investigated, and the police concluded that no crime had been committed. However, in line with their policy, a “non-crime hate incident” was recorded, and an incident number issued.

Get our weekly opinion newsletter for expert analysis from The Scotsman’s team of columnists

I knew none of this. The police did not contact me to discuss the matter, or even inform me of the incident recording. I would still know nothing about it had the complainer not then gone to the Ethical Standards Commissioner, brandishing the “crime reference number” (sic) and demanding that I be found guilty of breaching the MSPs’ code of conduct for a hateful act.

Displaying considerably more good sense than Police Scotland seem capable of, the commissioner dismissed the complaint as groundless, as I was entitled to express a political opinion. At that point, and only then, was I made aware of the issue, it being the policy of the commissioner to advise MSPs of all complaints, even those which are dismissed.

I wrote immediately to the Chief Constable – this was on December 21 last year – to ask whether it was correct that a hate incident had been recorded and, if so, to ask for an urgent meeting to discuss what I regarded as a very serious matter. Disgracefully, she did not give me the courtesy of a reply. Instead, nearly three months later, on March 11, I received a letter from my local police commander in Perth advising me, finally, that a hate incident HAD been recorded. This was nearly four months after the event.

Right to free speech

There are a whole range of concerns about what I have experienced. My original tweet, the subject of the complaint, was not directed at any individual, but a comment on a Scottish Government policy. Are we really now in a place in Scotland where criticism of SNP policy is treated as a recordable hate incident?

How many other such hate incidents have been recorded against me? I have submitted a subject access request to Police Scotland, and am encouraging others to do the same. What are the consequences – if any – of such records?

There are also serious doubts as to the lawfulness of the police policy. The Free Speech Union, on whose Scottish Advisory Council I sit, took legal advice, which indicates that Police Scotland are acting unlawfully in at least three respects.

Firstly, Articles 8 and 10 of the European Convention on Human Rights, to which the UK is a signatory, protects both free speech and expressions of political opinion. By treating the political criticism of an aspect of government policy as a hate incident, the police have breached my convention rights.

Secondly, there is established in law a specific protection for gender-critical views under the Equality Act. This was upheld in the English courts in the Maya Forstater case, and there is no reason to believe that a court here would take a different view. Thirdly, it is a breach of the Data Protection Act for Police Scotland to process this information about me if I did not consent to it and it was not necessary or proportionate.

Values of the Enlightenment

All these matters were tested in England in the case of R (on the application of Miller) vs College of Policing, where the Court of Appeal determined that the then policy of the police there, of recording non-crime hate incidents, was "plainly an interference with freedom of expression, and knowledge that such matters are being recorded and stored in a police database is likely to have a serious chilling effect on public debate”. Subsequent to this ruling, the College of Policing changed their policy on recording hate incidents in England. For reasons best known to them, Police Scotland have not followed suit.

So what happens now? The new Hate Crime Act comes into force on Monday – April Fools’ Day – and while that will have no direct impact on the recording of hate incidents, we are likely to see an explosion of spurious and vexatious complaints to the police. If each and every one has to be recorded a hate incident, that opens the door to a mountain of claims against Police Scotland for acting unlawfully.

Scotland needs to be the country we historically were, where the values of the Enlightenment, of free speech and open debate, are cherished. Police Scotland need to scrap their unlawful policy that chills that opportunity for free dialogue. And if they won’t, and if the architect of the Hate Crime Act, Humza Yousaf, won’t tell them to do so, it will be left to the courts to speak for liberty.

Murdo Fraser is a Scottish Conservative MSP for Mid-Scotland and Fife