WOULD taking (and giving) pelters, as the boys from the “Proddy Dogs” school met us boys from the “Fenian B*stards” school on a Coatbridge crossroads, nowadays count as “hate crime”? In my 1970s youth, you factored in mutual sectarian loathing the way you did cars on the roads, or advancing rain-filled clouds.

And if you know your Monklands demographics, you’ll understand that this was hardly a matter of oppressed Catholics of an Irish background, facing a regnant Protestant majority. The to-and-fro was, shall we say, evenly matched. The reciprocal chasing no doubt improved cardiovascular fitness in all parties. Let’s call it a Lose-Win.

But we want things to be better now, yes? I’m the last person to adopt the stance of “the old days never did me no harm”. I’ve been trying to escape from that conditioning all my life.

And the present has its challenges. This is a country in which reports of hate crime – under the existing (UK and Scottish) laws – have been increasing over the last year. The Crown Office in Scotland reports race-aggravated crime up by 4%, sexual orientation offences up by 24%, disability by 29% (and just to add: religiously aggravated crime is up by 24%. Back to the future).

Now, we’re undoubtedly a collectively stressed society at the moment – and these are 2019 figures, happening before the general frazzlement of Covid. Overworked, underpaid and debt-stretched folks can often not be at their best and noblest.

But civility and respect for others is the lubricant that makes even the clankiest social machinery turn.

No-one should be afraid to walk down a street in their traditional or chosen garb, or in the skin they’re in, and feel publicly aggressed against, by virtue of their existence or identity. We must try strenuously to live well together. Even more so in a Scottish society that will be increasingly diverse and plural, as the Anthropocene scatters billions of people across the planet.

One way that can be achieved is positively and culturally: a multi-ethnic embrace. I note from his Twitter profile that Humza Yousaf – the ScotGov minister who’s guiding a new Hate Crime and Public Order Bill through the Scottish Parliament – says that he “hails from the bhangra and bagpipes tradition”. It’s one of the joys of my life to have seen Asian-Scottish fusion culture emerge and thrive in this country.

But the stats don’t lie. There has also to be a negative and legal sanction, applying to behaviour that sullies these beautiful overlaps and hybrids.

To begin with, you have to admire Yousaf’s ambition to try to harmonise the messy array of hate crime laws into one clean, logical arrangement. It’s what you’d expect a nation that’s prideful about its own legal traditions would attempt.

Therefore, a legalistic Scots government should expect pushback and contestation on such a major proposed law. What’s been interesting is that the most notable critique of Yousaf’s reforms has come from indy-supporting artists and creatives. Backed up, it has to be said, by some of the heaviest hitters in Scottish law.

The problematic proposals involve a new crime of “stirring up hatred” against groups identified in the bill – defined as “behaving in a threatening or abusive manner, or communicating threatening or abusive material to another person”.

The sticky bit for artists and creatives is that this has two parts – one “with the intention” of stirring up hatred. And the other, “where it is a likely consequence that hatred will be stirred up against such a group”. There’s also a new offence of “possessing inflammatory material”, meaning people “who have in their possession threatening, abusive or insulting material with a view to communicating the material to another person”.

Haud on, say a phalanx of cultural creatives (and also the Faculty of Advocates and the Law Society). What about when artists and academics (or for that matter, Frankie Boyle) choose to “possess inflammatory material” in order to explore exactly the motivations and world views of the intolerant and extremist among us? And hoping very much that they can “communicate this material to another person”, in the form of a performance or artwork?

IT could also be a constraint on artistic imagination. What if prosecution can also come from material judged as having the “likely consequence” of stirring up hatred (as well as a clear “intention” behind it)?

Let me test this (and I invite smarter folks than me to respond). I’m re-reading Joyce’s Ulysses at the moment. This is generally regarded as the greatest novel of modern times, because nearly all the crooked timber of human life is there.

But one of the great tensions in Ulysses is between the out-and-out antisemitism of everyday life in Dublin, as encountered by the Jewish advertiser Leopold Bloom and his wondrous capacity for absorbing and transforming it (and much else).

I won’t repeat the abuse that appears in the book here. But large areas of the early structure of Ulysses wouldn’t work if Joyce wasn’t able to situate Bloom in this quietly but explicitly hostile environment.

Imagine Joyce felt that such “inflammatory material” wasn’t safe for him to draw on in his public work, for fear of some litigant deciding to object to the “hate material” therein (of course, this works for any mode of hate speech a writer might draw on artistically, rooted in any credo or religion).

Is Yousaf’s bill really this unsubtle? Earlier this month, the Justice Secretary noted in these pages that “there is also the defence that a person’s behaviour was ‘reasonable’ in the circumstances … this means there is a high bar before conduct is criminalised”.

But are we really going to subject artworks to the test of whether their handling of “inflammatory material” is “reasonable” or not? One could easily make the case – indeed, scourges such as Bonnie Prince Bob and his Dis/Content project often do – that contemporary Scottish arts are already far too “reasonable”, given the social maladies and pathologies that surround us.

We may wish to understand, rather than extirpate, the harshest and most destructive voices among us. If so, then artists may need to evoke them fully, bringing them to the centre of their various stages. This is exactly the way that Irvine Welsh shoved the out-of-control chemical generation right in the face of a sleeping mainstream Scotland, nearly 30 years ago. How might we imagine a young Welsh, desperate to poke our current row of hornets’ nests, faring today? Not just artistically, but legally?

Most of the commentary until now suggests that the bill needs only a degree of tweaking to remove its artistic constraints (for example, stick with trying to prove an “intention” to produce hate material – don’t extend it to a “likely consequence”. And put some strong journalistic, literary and artistic context around “reasonable”).

The general expert consensus is that the bill is a long-overdue consolidation of a scattered legal landscape. Yet we evidently need more examination of this thorny space between “the right to express views even if they shock, offend or disturb others” in Yousaf’s own words to the Society of Editors; and “the right to threaten and abuse others where that is likely or intended to encourage a hatred of them”.

The philosopher Chantal Mouffe makes a beautiful distinction between “agonists” and “antagonists”. The latter regard their opponents as enemies to be crushed, obliterated, vanquished. The former understand that debate is always healthy, however polarised their opponents, who are worthwhile in their willingness to engage.

Pelters come with the rain, and the cars, in Scotland. So we should seek to be a nation of agonists, at least, not antagonists. Let’s try and get the law to help bring that about.