I’M reluctant to use the word hate because it can get you into trouble but let me say right away that I hate the way the Scottish Government does certain types of legislation and by the looks of things they haven’t learned their lesson yet. Here we go again.

I’m referring to the Hate Crime Act 2021 which was described by then justice secretary now health secretary Humza Yousaf, uh-oh, as a landmark bill that shows Holyrood at its best and sends a message that offences motivated by prejudice will not be tolerated. “I look forward to the implementation of this legislation,” he said.

He’ll have quite a wait. The bill was passed in 2021 and yet here we are in 2023 with no sign of it starting. Not only that, it became clear this week that the law will not be enforced until 2024 at the earliest because of police concerns about the level of resourcing, training and guidance for officers. The police need to be confident they know what the law is about before it starts, and they’re not.

Sadly, we have a precedent for all of this. In 2012 the Scottish Government introduced the Offensive Behaviour at Football law on sectarianism and it was clear from the off that it lacked clarity and was confusing for police, prosecutors and fans. The conviction rate was also woeful and it was eventually repealed when the opposition at Holyrood teamed up against it. At no point was anyone denying the issue of sectarianism but the Offensive Behaviour law was the wrong solution to a real problem.

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Ten years on, it’s obvious the same fundamental problems exist with the Hate Crime Act, almost as if the Scottish Government isn’t learning from its mistakes. Ministers say the act makes it clear hate crimes will not be tolerated but their law doesn’t make it clear what a hate crime actually is. Like the Sectarianism Act, the definitions are hopelessly vague, and vagueness, always, is the enemy of good law.

The problem would appear to be particularly acute with the new offence that the law creates: “stirring up hatred”, which means someone can be prosecuted if they intend to stir up hatred against a protected group or their behaviour is likely to stir up hatred. But this is a hopelessly low and confusing standard. What is hatred? Is it the same as insulting? And how likely is likely? Do we mean probable, more probable than not, or what exactly? Criminal law must have certainty and the hate law fails that test badly.

Having said that, the next question is what happens when the law comes into effect in 2024, 2025, or whenever, and some have predicted it will undermine freedom of expression. This may be so – we have no real way of knowing – but if you insist on a prediction from me, I think it’s more likely the law will go down the same road as the sectarianism law: its vagueness will mean there’s a woefully low prosecution rate and it will eventually just kind of atrophy before being abolished by a future non-SNP government.

Now there’s a prediction for you. There will be a non-SNP government in Scotland. One day.

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However, I accept that it’s possible to glimpse a different kind of future in which a vague law creates a culture in which no one is entirely sure what’s acceptable or unacceptable and the police pursue language and behaviour simply because it’s unpleasant, nasty, insulting or offensive. The campaign group Index on Censorship said the other day that it’s happening already based on the rising number of incidents recorded in Scotland which are perceived by the police to be motivated by hate or prejudice but do not break the law. They call them non-crime hate incidents.

It’s a particularly worrying phrase that one isn't it – non-crime hate incidents – and there was similar moronic language in a troubling letter from the Met Police that was doing the rounds on social media at the weekend. The Met wrote to a football fan who was annoyed at the sight of the LGBT flag at Wembley and posted his annoyance in a video on Twitter. The police said the fan was required to contact them to arrange a voluntary interview and there you have it: “required” to attend a “voluntary” interview. Isn’t this language being mangled – as with “non-crime incident” – in the service of a situation no one really understands?

The Twitter account of the fan involved has now been suspended and can no longer be viewed, which is a whole other story (wasn’t Elon Musk supposed to be a free-speech absolutist?) But what appears to have happened is that the video about the LGBT flag included a crude word used to describe sexual predators. If that’s the case, it’s unpleasant, or not nice, or whatever other description you want to use. Most people would probably agree on that.

But I hope most people would also agree that “unpleasant” or “not nice” does not, and should not, meet the test for police involvement. As a matter of fact, the LGBT flag being used by the football industry gets me pretty wound up too, for the simple reason that it’s easy to put up rainbow flags in the UK but not so easy to make a similar gesture in a country like, say, Qatar. I also find the whole idea of the flag troubling: over the years, more and more colours have needed to be added to it because that’s what flags do: they include but they also exclude.

The greater point is that a particular type of flag should not be immune from criticism – including criticism some would find offensive – and the same should apply to other controversial subjects. The question is where the police in Scotland are likely to go with this once the hate bill becomes law. There’s a chance they’ll go in full-pelt and vigorously pursue people “stirring up hatred” as well as sending out more and more letters to people engaging in non-crime hate incidents and requiring them, voluntarily of course, to attend a police interview.

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However, I suspect – I hope – that the police won’t actually do much of this in the end and will be reluctant to act because of the vagueness of the law or because of a lack of resources or both; indeed, the fact they’ve forced a delay in the Hate Act is an early sign that this is what will happen.

The police have better things to do. People are already being nasty to each other every day and that’s life. The new law is not good. And all of that means that, like the Sectarianism Act before it, the Hate Act is likely to meet the fate of all bad laws: an ignominious and hateful end.