I am old enough to remember the 'Reclaim the Night' marches that started in Leeds in 1977. They were a response to the police in the north of England telling women to stay indoors while the Yorkshire Ripper was at large across the region. When the police said 'women', they meant all women in the region.
I was 19 in 1977, starting university in Glasgow. I'm 62 now and women are still being told to stay indoors, to lock themselves away, to dress in a manner that sheriffs, judges and many men find modest and sensible, to not walk alone and stay off the streets, to not go to bars and restaurants alone, to not drink, to not invade, indeed to cede, the space of life itself to men or accept responsibility for what may happen next.
Women should adapt their behaviour to avoid abuse and aggression – but not men. Clearly, the night has not been reclaimed and it is blindingly obvious that women, who comprise over half the population of Scotland are still, by some distance, the most vulnerable social group in the country. Women continue to be abused, attacked and murdered by male strangers in the street and, more often, by men known to them in their own homes.
It is surprising, therefore, to consider that the Scottish Government successfully guided a piece of legislation through the Scottish Parliament that excluded women from protection against 'hate speech' in Scotland. This during the week that included International Women's Day and the national outrage that followed the kidnap and murder of one young woman in London, and at least three others across the country who did not make the national media.
It would seem that the new Hate Crime and Public Order (Scotland) Act is designed to protect members of specific minorities in Scotland who are subject to abuse and aggression. This is surely laudable and certainly overdue. However, why can't all the people in Scotland be protected? Why, for example, must women 'be patient' when they form the largest vulnerable group? Why isn't violent misogyny included in the category of offences under the new law?
If, as statistics show, women suffer more than any other social group from hate speech and violence within the home, why are they excluded from a law that now allows domestic abusers to be prosecuted more easily? The answer seems to be: ...because women are not a minority specific enough for those who drafted the bill in the first place.
Those people, the drafters of Scottish Government legislation, appear not to be old enough to remember the embarrassing abandonment of the Scottish Government's 'Named Person Scheme' in 2019. The idea, whereby the state would appoint someone from a range of institutional possibilities to supervise the upbringing of every child in Scotland, was shown without much difficulty, to be unworkable. It also failed the fundamental tests offered by generally well understood human rights law.
Similarly, the lessons presented by the equally embarrassing repeal of the Offensive Behaviour at Football Act in March 2018 have steadfastly remained unlearned. I think it likely that the same fate awaits the Hate Crime and Public Order (Scotland) Act, when the inevitable legal challenges prove that it is extremely difficult to define hate speech in a country populated by a people who have relished calling each other nasty names, often while fighting, for centuries.
It may also be extremely difficult to prosecute someone for what they are alleged to have said in their own home in relation to consequent events. This will, I imagine, require evidence from the accused's friends and family, and will involve a great deal of hearsay and confusing evidence that may be considered inadmissible in court.
The success of authoritarian law, which is what I consider the Offensive Behaviour at Football Act and the Named Person Scheme to have been, and the Hate Crime and Public Order (Scotland) Act to now be, depends on the suspension of the principle of the Rule of Law in a liberal democratic society. Fortunately, the Scottish Government has not tried to take us to that point – yet. These attempts to regulate the behaviour of large numbers of people in Scotland far exceed the Scottish state's capacity to enforce them.
A society cannot be changed by law alone, no matter how desirable that change may seem. Even in states where this has been tried, with the suspension of the principle of the Rule of Law, the experiment failed. Germany does not consist only of pure Aryans and the Russian Orthodox church remains one of the great sources of social and political power in what was once the Marxist USSR.
Perhaps more baffling is the weirdly divisive politics of these three important legislative failures. The assumption behind the Offensive Behaviour at Football Act was that a rather large number of Scottish people, football fans, were, and probably remain, offensive. This created a conflict between the Scottish Government, their allies in the non-football-loving section of the community, and the football lovers with their particular sub-cultures.
Through the Named Person Scheme, the Scottish Government was about to make enemies of most if not all of Scotland's parents – rather a large and important social group. Now the omissions glaringly evident in the Hate Crime and Public Order (Scotland) Act have made enemies both of many women who already feel frightened and vulnerable, and also those who may be charged with offences that may or may not have taken place at home in the heat of an after-dinner moment, which may be none of anybody else's business. These three pieces of legislation divide groups of Scottish people against each other and against their government.
The SNP are very fond of assuring us of how 'civic', 'inclusive' and profoundly reasonable we are, yet, through the medium of their legislative programme, they seem to be telling us something quite different. Surely, if they are serious about a second independence referendum in the near future, they should be trying to pull us together not drive us apart.
Ronnie Smith has been a history teacher in Romania and France over the past 10 years. He continues to live in France where he intends to devote more time to writing