The loss of our freedom to think and express ourselves is much more than just a cold hard fact. It is a sinking feeling, a knot in the throat, as you see a person you care about unfairly maligned and persecuted by zealots. It is distrust around a dinner table, and the anxiety that you might be next. The friend who is forced to choose between their career and their conscience. The sister who is abused because others were too afraid to speak out. It is colleagues betraying each other to save their own skins when the mob comes knocking. It is the innocent person hung, drawn and quartered in the public square for uttering something utterly benign. 

It is a society with the life crushed out of it. This is why, historically, free speech is the canary in the coal mine when darker days are looming. 

This week the United Kingdom stands at a cross-roads. In England, former cop Harry Miller is challenging the College of Policing in the Court of Appeal, over their recording of Non-Crime Hate Incidents (NCHIs) which uniquely impact freedom of speech. Meanwhile the Scottish Parliament are debating the controversial Hate Crime Bill that would criminalise conversations in your own home and put serious limits on the scope of public discussion. 

Even the BBC expressed concern about the Scottish legislation

In 2019, Humberside police received an anonymous complaint about Miller, alleging that he had made “transphobic” comments on Twitter. The police were concerned about his retweet of feminist song lyrics as well as a tweet joking, “I was assigned mammal at birth, but my orientation is fish. Don’t mispecies me, fuckers.” They saw fit to go to his place of work, and to give him a talking to. Miller was told that though his tweets were no crime, they were “upsetting” and if his behaviour escalated, “it may amount to a hate crime”.

In February, Justice Julian Knowles said that the police turning up at his workplace “because of his political opinions must not be underestimated”. “In this country”, Knowles said, “we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian Society”. But is this changing?

NCHIs are not law. They were not created by parliament, but by the College of Policing – an unaccountable quango. They are codified in a non-legislative document called the Hate Crime Operational Guidance. These NCHIs are defined as “any non-crime incident which is perceived by the victim or any other person to be motivated by hostility and prejudice” on the basis of protected characteristics (including transgender identity).

Hostility is understood to be “ill-will” or “dislike”, and can be recorded against a person’s name without their knowledge, or investigation, simply because someone didn’t like something they said. The offended party is recorded as a victim, and as it is entirely subjective, no proof is required. 

On Monday the Free Speech Union’s Research Director Radomir Tylecote published a paper calling for the removal of NCHIs from the Guidance, as the police are effectively placing “stricter limits on free speech than parliament has provided for”. Off their own backs, and without parliament’s say-so, they have set about the mass surveillance of ‘offensive’ opinions. 

The motivation behind NCHIs is the same sinister outlook behind the Hate Crime and Public Order (Scotland) Bill: the idea that, to create a better society, the authorities should eliminate undesirable ideas and feelings from individual hearts, legislating ‘wrongthink’ out of existence by criminalising its expression.

When a Labour MSP lodged an amendment to protect discussion of sex and gender identity it was tarred as an attack on trans rights

Since the Bill was first drafted, a huge array of organisations expressed concerns about the impact of its ‘stirring up hatred’ offences on free speech. These included the Faculty of Advocates, the police, the Catholic Church, the National Secular Society, artists, writers, comedians, and even the BBC.  

Amendments proposed to protect free speech were hastily withdrawn under the slightest pressure from lobby groups. The fact that a small but vocal group of trans activists viewed the free speech protections as offensive tells you everything you need to know. When Labour MSP Johann Lamont lodged an amendment to protect discussion in the debate around sex and gender identity, protecting the expression of the view that sex is physical, binary, and that a persons’ sex may be relevant to their experience, this was tarred as an attack on trans rights.

This demonstrates the extent to which the law is being used by certain groups to gain a power advantage to silence their opponents in this febrile and slippery debate. It is ironic that, in the week of International Women’s Day, Scotland may be about to pass a law that poses such a grave threat to women’s ability to defend their hard-won sex-based rights. As much rests on the decision of the Court of Appeal.

If this law is passed, there will be less free speech in Scotland than anywhere else in Europe. It will become a fearful and humourless nation without trust or free thought. If such a society takes the wrong path, no one will able to tell the Emperor Sturgeon she has no clothes.