The Hate Crime and Public Order (Scotland) Act

A Tory MSP has threatened legal action against Police Scotland after the force logged a social media comment he made as a "hate incident".



Murdo Fraser likened identifying as non-binary to identifying "as a cat", in relation to Scottish government equality policies last November.



Police decided no crime had been committed after a complaint was made.



The force also said their recording helps "monitor tensions" in communities and informs police responses.



However Mr Fraser has accused police of acting unlawfully by recording it as a hate incident.



His complaint comes ahead of new hate crime legislation taking effect in Scotland from 1 April.
The dispute began when Mr Fraser commented on a newspaper article about the Scottish government's Non-Binary Equality Action Plan last November.
He posted: "Choosing to identify as 'non-binary' is as valid as choosing to identify as a cat. I'm not sure governments should be spending time on action plans for either."
A member of the public made a complaint about the post. After considering the complaint, Police Scotland decided that he had not committed a crime.



But the post was recorded as a "hate incident", though this was not attached to Mr Fraser's name.



A separate complaint was later made with the Scottish Parliament's ethical standards commissioner, citing the police reference number. This alerted Mr Fraser to the fact that a "hate incident" had been recorded.



The commissioner judged that there did not appear to be a breach of the code of conduct for MSPs.



In a letter to Police Scotland, Mr Fraser accuses the force of breaching the Human Rights Act, the Data Protection Act and the Equality Act as well as breaching Hate Crime National Guidance (HCNG).



The mid-Scotland and Fife MSP describes the guidance as empowering police forces to record non-crime hate incidents and called on the force to make changes to it, as well as to delete the hate incident.



He has threatened legal action if this does not happen.



Mr Fraser said: "Police Scotland has behaved not just outrageously, but unlawfully according to the legal advice obtained by the Free Speech Union.



"This is Police Scotland attacking free speech - but it is more sinister than that. My tweet wasn't pointing a finger at an individual - it was critical of a Scottish government policy."



Mr Fraser said police forces in England and Wales had decided not to record non-criminal hate incidents, but said Police Scotland has not done that.