The Hate Crime Act tries to match human complexity and comedy

Given the sheer mental relief that Boyle’s pitiless wit has given me over the last fortnight, I am particularly resistant to any legal regime that might threaten to stop his (or anyone else’s) fabulously downbeat flow.

We’re specifically assured it won’t. Police Scotland says it’s “not instructing officers to target actors, comedians, or any other people or groups.” Adam Tomkins – the former Tory MSP and legal academic, who chaired the committee that steered the bill through – writes clearly about what the act does and doesn’t allow, in our sister paper The Herald.

“The threshold of criminal liability is not that a victim feels offended (a subjective test), but that a reasonable person would consider the perpetrator’s action or speech to be threatening or abusive (an objective test)”, says Tomkins. “Discussion or criticism of matters relating to sexual orientation, transgender identity, age or disability, is not to be taken as threatening or abusive …”

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The “reasonable person” is a big player in this act. Their rationality is explicitly expected, in the very letter of the law. It’s the character that considers the rights of free speech, in any case that’s brought up. Tomkins notes this “includes the principle that this right protects communications which others may find offensive, shocking or disturbing”.

That should mean Frankie’s all right for his forthcoming tour, then – a significant chunk of which takes place under Scottish jurisdiction.

Tomkins also notes that “race enjoys the fullest protection … religion enjoys the least protection”. Boyle has already won a libel case against the Daily Mirror calling him a “racist” in 2012. Boyle was successful in claiming that any racist language he deployed was attributable to the characters he was critiquing, in the course of his act.

In any case, as Tomkins points out, “insulting someone’s race has been an offence ever since Harold Wilson’s government first made it so in 1965.”

Another assumption of the act is that a “reasonable person” will be able to judge the actions denoted by the phrase: “stirring up hatred.” As many have noted, there were enough legal options before this act whereby racist and sexist public actions could be criminally prosecuted.

But can comedy ever be understood as “stirring up hatred”? Is that really how it functionally works? We seem to have come through an entire cycle on this, in my lifetime.

I’m old enough to remember watching TV shows like The Comedians in the 70s. Ranks of white male comics would begin routines with “take my wife” or “see my friend Chalky” or “I hate them Germans”. Then alternative comedy (perhaps best exemplified by the troupe known as The Comic Strip) took these sexist and racist traditions and turned them upside down. The targets became capitalism or patriarchy or racism itself.

Now, the algorithms in 2024’s social media feed are detecting my demographic (and maybe also my glumness). They’re sending me clips from comedians like Louis CK, Dave Chappelle and Bill Burr.

To my ears, they’re all fuelled by a rage at how traditional masculine authority is being challenged. And they’re all willing to skip back and forth over taboo lines in order to protest this.

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But while doing this, they are being comics. That means they’re more about stirring up their own self-hatred, than they are about hatred of others. They’re antic clowns doing physical comedy, making themselves look ridiculous. They’re wilfully unravelling their own authority with verbal invention.

To reveal the intelligence behind this, I could do no better than to quote one of Boyle’s characters in Meantime: “Masculinity is a con from people who needed guys to die on battlefields; then when that was over, being a man was having a job.

“Worrying about being five minutes late to make money for someone else.”

For the part of me that’s a political animal, I find the linguistic compression of comedy to be helpful. It aids me to think about the emotional shocks required, in order to break through the passivity and complacency of an audience of citizens. But comedy is a playful, improvisational form. The “reasonable person” that stalks this Hate Speech Act would have to accept: sometimes it’s going to be messy.

The award-winning, gay-identifying comedian Scott Capurro tested out some jokes about Hamas in The Telegraph the other day, anticipating the act. “There’s so much there …” Some of Capurro’s Hamas jokes: “They’re really angry because the BBC won’t recognise them as a terrorist organisation. I also joke that I’d like to play Gaza but I don’t want to bomb ... If we don’t have the freedom to ridicule, we’re fucked.”

Are you offended? Or are you just enjoying the firework display, going off in a variety of directions, which comics searching for a laugh do? (I’ll exercise restraint in citing here Boyle’s 2010 Radio 4 joke about the Isreal-Palestine situation, publicly disowned by the BBC Trust – but if you want to read it, that’s what the internet’s for). I expect that there are political operators who will test this law out with various comedy performances (brace yourself for the Edinburgh Fringe). If Tomkins and others (like Andrew Tickell) are right, they’ll fall flat on their faces.

Who knows? Maybe we’ll end up a little wiser as a polity. One that’s able to discriminate malicious division-mongers (whose aim is essentially civil war), from artists and performers who attract audiences for their very ability to be merrily ambiguous about power, money and the human condition.

But comedy is only one element of what should, in my view, be a general aspiration to our self-mastery of emotions, what social scientists call “reflexive awareness”. There’s also a political economy this awareness implies.

There’s been much derision of Police Scotland’s “Hate Monster” cartoon (below), where a working-class male voice (speaking in urban Scots) describes the dynamics and conditions that might lead him to an act of “hate crime.”

Its analysis is exactly half-right. Yes, the thwarted “energy” that the video identifies should be something directed to better ends. But there’s nothing in the narration to suggest that this frustration comes from the structures we live in.

Which mean a produce-to-consume society that’s clearly coming to an end, with no clear alternative being articulated.

Again, to hang out with Boyle – as his novel progresses – is to be with characters who get this, with comedy the mechanism for insight.

From one character, Amy: “Civility is made out to be this really great thing by all the people who benefit. Of course they want everyone to stick to the rules of civility, because those rules stop people from asking them why they have all the fucking stuff.”

There’s a final question for the “reasonable person” stalking this act: they should also assess the cultural form to which an “offence” is imputed. A novel is designed to contain multitudes. And there is a surprising moment of genuine, throbbing tragedy in Meantime (no spoilers). It makes complete sense of the amused but take-no-prisoners nihilism of the main character.

READ MORE: Women have every right to be concerned about Hate Crime Act

If there’s speech propelled by hate in this novel, there is an equal claim that it’s coursing with a deep, painful river of love too.

Living together in 2024 is a complex task. Human beings continue to unfold and develop on a planet we both instrument, and asphyxiate. And then, we freak out about the social and cultural tensions generated by what we’re doing.

The Hate Crime Act is a work of law that tries – let’s see if it’s failed – to match that complexity.

We should try ourselves to be complex, as it proceeds through our social mess – attempting to adjudicate the ratio between feeling free, and feeling secure. In the meantime, as Mr Boyle would put it.