It is important to distinguish between the thresholds that are likely to trigger a successful prosecution, or even an attempted prosecution, and the wider effects of the bill. I want to very much reinforce the evidence that you got from John McLellan about what he called the chilling effects of the law.
When you legislate in this regard, you are not just legislating for the very small number of people who will be prosecuted—I agree absolutely with Becky Kaufmann that the people who are likely to be successfully prosecuted under this law will have met extremely high thresholds—you are casting a long shadow, because people will worry about investigation. John McLellan spoke eloquently about the effect of the fear of investigation, or even just of being contacted by the police at that level, even if the charges are not pursued or are dropped before they come to court after the investigation.
I mentioned our experience of putting forward an article at the Edinburgh University Press, which was a discussion of the way that policy had been formed around transgender and women’s rights in prisons and in the census. When the article neared the point of publication, an internal memo at the EUP that discussed it said:
“It ... expresses anti-trans sentiment and also uses terms that are discriminatory and insulting towards trans women (for example, the use of the word ‘women’ as specifically excluding trans women).”
The memo went on to say that publishing would be
“morally wrong and socially irresponsible”,
and to compare the article to antisemitism and Islamophobia.
12:15
In that context, the matter was dealt with as an internal publishing issue and the article was published. I am absolutely sure that, if the legislation that the bill proposes had existed, it is likely that the publisher would have had in front of it the potential of committing a stirring-up offence. Publishers will worry about that, and I know that writers will.
I believe strongly that John McLellan’s points need to be taken seriously. It is not just about how hard it is to get a prosecution, as the thresholds in the bill might be high enough in that regard; it is about the wider side effects on behaviour, which are important.
I noticed that when Michael Clancy talked to the committee about the private dwelling defence, he said that he does not think that
“there should be a sanctuary when it comes to hate speech.”—[Official Report, Justice Committee, 3 November 2020; c 9.]
He used the term “hate speech”, which struck me as interesting, because the bill does not consider hate speech; it refers to the “stirring up” of hate, which is a distinctive and different offence. Even in the context of the committee’s discussion of the bill with someone from the Law Society of Scotland, one begins to see a shading of the way in which the legal proposals are discussed.
The reliance on training of or guidance to prosecutors or police officers is not a strong protection for people in my situation and others who might be worried about being caught up in the wider shadow that the bill casts. Calum Steele from the Scottish Police Federation and witnesses on the committee’s religious belief and faith panel made those points, too, and I want to echo them.
To give another example from academia, we referred in our written evidence to stickers at the University of Edinburgh that said:
“Woman. Noun. Adult human female”.
The Scottish Trans Alliance suggested that people might want to refer those stickers to the police, and the university did so as potential hate incidents. We need to consider the level at which hate and the stirring up of hate, theoretically in that case, are perceived. We need to be careful to understand how widely the net is cast as hate—not just as offence, but specifically as hate.
I am conscious of your time; I hope that that is enough.